AGREEMENT AND PLAN OF MERGER DATED AS OF JULY 15, 2008 BY AND AMONG CONVERGYS CORPORATION, DIALOG MERGER SUB, INC. AND INTERVOICE, INC.
Exhibit 2.1
DATED AS OF JULY 15, 2008
BY AND AMONG
CONVERGYS CORPORATION,
DIALOG MERGER SUB, INC.
AND
INTERVOICE, INC.
TABLE OF CONTENTS
Page | ||||||
ARTICLE I DEFINITIONS; INTERPRETATION | 2 | |||||
1.01 |
Definitions | 2 | ||||
1.02 |
Interpretation | 8 | ||||
ARTICLE II THE OFFER | 9 | |||||
2.01 |
The Offer | 9 | ||||
2.02 |
Company Action | 11 | ||||
2.03 |
Top-Up Option | 12 | ||||
ARTICLE III THE MERGER | 13 | |||||
3.01 |
The Merger | 13 | ||||
3.02 |
Closing | 14 | ||||
3.03 |
Effective Time | 14 | ||||
3.04 |
Effects of the Merger | 14 | ||||
3.05 |
Articles of Incorporation and By-laws | 14 | ||||
3.06 |
Directors and Officers | 14 | ||||
3.07 |
Conversion or Cancellation of Shares | 15 | ||||
3.08 |
Exchange of Certificates; Payment of the Merger Consideration | 15 | ||||
3.09 |
Stock Incentives | 16 | ||||
3.10 |
Dissenting Shareholders | 17 | ||||
ARTICLE IV CONDUCT OF BUSINESS PENDING THE MERGER | 18 | |||||
4.01 |
Agreements of the Company | 18 | ||||
4.02 |
Agreements of Parent | 21 | ||||
ARTICLE V REPRESENTATIONS AND WARRANTIES | 21 | |||||
5.01 |
Disclosure Schedules | 21 | ||||
5.02 |
Standard for Breach of Representations and Warranties | 21 | ||||
5.03 |
Representations and Warranties | 21 | ||||
5.04 |
Representations and Warranties about Purchaser | 34 | ||||
ARTICLE VI COVENANTS | 35 | |||||
6.01 |
Reasonable Best Efforts | 35 | ||||
6.02 |
Shareholder Approvals | 36 | ||||
6.03 |
Proxy Statement | 36 |
i
TABLE OF CONTENTS
(continued)
(continued)
Page | ||||||
6.04 |
Press Releases | 36 | ||||
6.05 |
Access; Information | 36 | ||||
6.06 |
No Solicitation | 37 | ||||
6.07 |
Takeover Laws and Provisions | 39 | ||||
6.08 |
Regulatory Applications | 40 | ||||
6.09 |
Indemnification | 40 | ||||
6.10 |
Employee Matters | 42 | ||||
6.11 |
Notification of Certain Matters | 43 | ||||
6.12 |
Board of Directors; Section 14(f) | 43 | ||||
ARTICLE VII CONDITIONS TO THE MERGER | 44 | |||||
7.01 |
Conditions to Each Party’s Obligation to Effect the Merger | 44 | ||||
ARTICLE VIII TERMINATION | 45 | |||||
8.01 |
Termination | 45 | ||||
8.02 |
Effect of Termination | 46 | ||||
8.03 |
Termination Fee | 46 | ||||
ARTICLE IX MISCELLANEOUS | 47 | |||||
9.01 |
Survival | 47 | ||||
9.02 |
Waiver; Amendment | 47 | ||||
9.03 |
Counterparts | 47 | ||||
9.04 |
Governing Law; Jurisdiction; Venue | 47 | ||||
9.05 |
Notices | 48 | ||||
9.06 |
Entire Understanding; No Third Party Beneficiaries | 49 | ||||
9.07 |
Severability | 49 | ||||
9.08 |
Assignment; Successors | 49 | ||||
9.09 |
Expenses | 49 | ||||
Annex A — Conditions to the Offer | ||||||
Schedules — Company’s Disclosure Schedule | ||||||
Exhibit A — Form of Tender and Voting Agreement |
ii
This AGREEMENT AND PLAN OF MERGER (this “Agreement”), dated as of July 15, 2008, is by and
among Convergys Corporation, an Ohio corporation (“Parent”), Dialog Merger Sub, Inc., a Texas
corporation (“Purchaser”), and Intervoice, Inc., a Texas corporation (the “Company”).
RECITALS
WHEREAS, the Boards of Directors of Parent, Purchaser and the Company have each determined
that it is in the best interests of their respective shareholders for Parent to acquire the Company
upon the terms and subject to the conditions set forth herein;
WHEREAS, it is proposed that Purchaser shall make a cash tender offer (the “Offer”) to acquire
all of the shares of common stock, without par value, of the Company (“Company Common Stock”) (all
such shares of Company Common Stock, together with the Rights issued pursuant to the Third Amended
and Restated Rights Agreement, dated as of May 1, 2001, by and between InterVoice-Brite, Inc. and
Computershare Investor Services, LLC (the “Company Rights Agreement”) being hereinafter referred to
as the “Shares”) that are issued and outstanding for
$8.25 per Share (such amount, or any
greater amount per Share paid pursuant to the Offer, being the “Per Share Amount”), net to the
seller in cash, without interest, upon the terms and subject to the conditions of this Agreement
and the Offer;
WHEREAS, as an inducement and condition to Parent entering into this Agreement, certain
shareholders of the Company are entering into a Tender and Voting Agreement with Parent and
Purchaser simultaneously with the execution of this Agreement in substantially the form attached
hereto as Exhibit A (a “Tender and Voting Agreement”), whereby, among other things, such
shareholders have agreed, upon the terms and subject to the conditions set forth therein, to tender
the Shares held by them in the Offer and support actions necessary to consummate the Merger;
WHEREAS, the Board of Directors of the Company (the “Company Board”) has approved the making
of the Offer by Purchaser and resolved to recommend that holders of Shares tender their Shares
pursuant to the Offer; and
WHEREAS, also in furtherance of such acquisition, the Boards of Directors of Parent, Purchaser
and the Company have each approved this Agreement and declared its advisability and approved the
merger (the “Merger”) of Purchaser with and into the Company in accordance with the TBCA and the
TBOC, as applicable, upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, and of the mutual representations,
warranties, covenants and agreements contained in this Agreement, Parent, Purchaser and the Company
agree as follows:
ARTICLE I
Definitions; Interpretation
1.01 Definitions. This Agreement uses the following definitions:
“2009 Bonus Plan” has the meaning assigned in Section 6.10(d).
“Acceptance Date” has the meaning assigned in Section 2.01(d).
“Acquisition Proposal” means any inquiry, proposal or offer whether in writing or otherwise,
with respect to (a) any purchase of an equity interest (including by means of a tender or exchange
offer) representing more than 15% of the voting power in the Company or any of its Significant
Subsidiaries, (b) a merger, consolidation, other business combination, reorganization,
recapitalization, dissolution, liquidation or similar transaction involving the Company or any of
its Significant Subsidiaries or (c) any purchase of assets, businesses, securities or ownership
interests (including the securities of any Significant Subsidiary of the Company) representing more
than 15% of the consolidated assets of the Company and its Significant Subsidiaries, other than the
Transactions.
“Agreement” has the meaning assigned in the Preamble to this Agreement.
“Appointment Time” has the meaning assigned in Section 6.12(a).
“Articles of Merger” has the meaning assigned in Section 3.03.
“Benefit Arrangement” means, with respect to the Company, each of the following: (a) under
which any of its employee or any of its current or former directors has any present or future right
to benefits, (b) that is sponsored or maintained by it, its Subsidiaries or its ERISA Affiliates,
or (c) under which it, its Subsidiaries or ERISA Affiliates has any present or future liability:
each “employee benefit plan” (within the meaning of Section 3(3) of ERISA) and each stock purchase,
stock option, equity-based grants, severance, employment, change-in-control, fringe benefit, bonus,
incentive, retirement, deferred compensation, paid time off benefits and other employee benefit
plan, agreement, program, policy or other arrangement (with respect to any of the preceding,
whether or not subject to ERISA).
“Benefits Transition Date” has the meaning assigned in Section 6.10(a).
“Business Combination Law” means Part 13 of the TBCA.
“Business Day” means any day other than a day on which banks in the State of Texas are
required or authorized to be closed.
“Certificate” has the meaning assigned in Section 3.07(a).
“Certificate of Merger” has the meaning assigned in Section 3.03.
“Closing” has the meaning assigned in Section 3.02.
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“Closing Date” has the meaning assigned in Section 3.02.
“Code” has the meaning assigned in Section 3.09(e).
“Company” has the meaning assigned in the Preamble to this Agreement.
“Company Board” has the meaning assigned in the Recitals.
“Company Board Change of Recommendation” has the meaning assigned in Section 6.06(e).
“Company Board Recommendation” has the meaning assigned in Section 5.03(e).
“Company Common Stock” has the meaning assigned in the Recitals.
“Company Compensation Approvals” has the meaning assigned in Section 5.03(w).
“Company Preferred Stock” means the preferred stock of the Company.
“Company Rights Agreement” has the meaning assigned in the Recitals.
“Company RSU” has the meaning assigned in Section 3.09(a).
“Company Shareholder Approval” has the meaning assigned in Section 5.03(e).
“Company Stock Option” has the meaning assigned in Section 3.09(a).
“Company Stock Plans” means the following plans of the Company: InterVoice, Inc. 1990
Incentive Stock Option Plan, 1990 Nonqualified Stock Option Plan for Non-Employees, InterVoice,
Inc. Restricted Stock Plan, InterVoice, Inc. 1998 Stock Option Plan, InterVoice-Brite, Inc. 1999
Stock Option Plan, Intervoice, Inc. 2003 Stock Option Plan, Intervoice, Inc. 2005 Stock Incentive
Plan and Intervoice, Inc. 2007 Stock Incentive Plan.
“Compensation Arrangements” has the meaning assigned in Section 5.03(w).
“Compensation Committee” has the meaning assigned in Section 5.03(w).
“Confidentiality Agreement” means that certain Confidentiality and Non-Disclosure Agreement
dated as of May 18, 2007, as amended on January 8, 2008, between Parent and the Company.
“Constituent Documents” means the charter or articles or certificate of incorporation and
by-laws of a corporation, the certificate of partnership and partnership agreement of a general or
limited partnership, the certificate of formation and limited liability company agreement of a
limited liability company, the trust agreement of a trust and the comparable documents of other
entities.
“Covered Employees” has the meaning assigned in Section 6.10(a).
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“de minimis” with respect to Section 5.02 and Annex A means variations resulting in an
aggregate cost to Parent and the Purchaser of less than $80,000.
“Disbursing Agent” has the meaning assigned in Section 3.08(a).
“Disclosure Schedule” has the meaning assigned in Section 5.01.
“Dissenting Shareholder” has the meaning assigned in Section 3.10(a).
“Dissenting Shares” means shares of Company Common Stock the holders of which have perfected
and not withdrawn or lost their right to dissent with respect to such shares under Articles 5.12
and 5.13 of the TBCA.
“Effective Time” has the meaning assigned in Section 3.03.
“Environmental Laws” means the statutes, rules, regulations, ordinances, codes, orders,
decrees, and any other laws (including common law) of any foreign, federal, state, local and any
other governmental authority, regulating, relating to or imposing liability or standards of conduct
concerning pollution or protection of human health and safety or of the environment, in every case
as in effect on or prior to the date of this Agreement.
“ERISA” means the U.S. Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate” has the meaning assigned in Section 5.03(l)(3).
“Exception Shares” means, collectively, shares of Company Common Stock owned or held by the
Company, Parent or Purchaser and/or any of their respective Subsidiaries.
“Exchange Act” means the U.S. Securities Exchange Act of 1934 and the rules and regulations
thereunder.
“Fully Diluted Shares” shall mean the total number of Shares outstanding and entitled to vote
in a merger as of a particular date, assuming the conversion or exercise of all Company Stock
Options, Company RSUs and other securities convertible into or exercisable or exchangeable for
Shares, other than potential dilution attributable to rights under the Company Rights Agreement.
“GAAP” means generally accepted accounting principles in the United States.
“Governance Agreement” means that certain Board Representation and Governance Agreement dated
as of June 22, 2007, as amended, by and between the Company and Xxxxx X. Xxxxxxxxxxx.
“Governmental Authority” means any court, administrative agency or commission or other
governmental authority or instrumentality, domestic or foreign.
4
“HSR Act” means the U.S. Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 and the rules
and regulations thereunder.
“Indemnified Party” has the meaning assigned in Section 6.09(b).
“Insurance Policy” has the meaning assigned in Section 5.03(y).
“Intervoice Companies” has the meaning assigned in Section 5.03(u)(1).
“IP Assets” has the meaning assigned in Section 5.03(u)(1).
“Knowledge” means or has reference to, respectively, the knowledge of, in the case of Parent,
its executive officers and, in the case of the Company, those individuals listed on Section 1.01 of
the Disclosure Schedule, in each case of the events and circumstances which relate to Parent or the
Company, as the case may be, which are known or should have been known upon reasonable inquiry or
investigation.
“Leased Property” has the meaning assigned in Section 5.03(x)(1).
“Leases” has the meaning assigned in Section 5.03(x)(1).
“Lien” means any mortgage, pledge, security interest, lien, or similar encumbrance other than,
with respect to the Company or its Subsidiaries, (a) any such mortgage, pledge, security interest,
lien or similar encumbrance disclosed in the consolidated financial statements of the Company and
its Subsidiaries or the notes thereto or securing liabilities reflected on such financial
statements or incurred in the ordinary course of business since the date of the most recent
consolidated financial statements, (b) any such mortgage, pledge, security interest, lien or
similar encumbrance for Taxes not yet delinquent or that are being contested in good faith and
reserved for in accordance with GAAP, or (c) any such mortgage, pledge, security interest, lien or
similar encumbrance which is a carrier’s, warehousemen’s, mechanic’s, materialmen’s, repairmen’s or
other similar lien arising in the ordinary course of business.
“Matching Agreement” has the meaning assigned in Section 6.06(f).
“Material Adverse Effect” means:
(a) with respect to the Company, any effect that is, or would be reasonably expected to be,
material and adverse to the financial condition, results of operations or business of the Company
and its Subsidiaries, taken as a whole, excluding in each case the impact of (1) changes in laws or
regulations of general applicability or changes in the interpretation thereof by Governmental
Authorities, (2) changes in general economic, financial market or political conditions, (3) changes
in any financial, banking, or securities markets (including any disruption thereof or any decline
in the price of any security or any market index), (4) the failure of the Company to meet revenue,
backlog or earnings projections or expectations, (5) further developments (other than a final
judgment) in Previously Disclosed litigation or claims (including those matters set forth in
Section 5.03(h) of the Disclosure Schedule) or (6) changes resulting from the announcement or the
existence of, or compliance with, this Agreement and the Transactions; and
5
(b) with respect to Parent or Purchaser, any effect that would materially impair the ability
of Parent or Purchaser to perform its obligations under this Agreement or to consummate the
Transactions by the Termination Date.
“Material Contract” has the meaning assigned in Section 5.03(j)(1).
“Materials of Environmental Concern” means any hazardous or toxic substances, materials,
wastes, pollutants, or contaminants, including without limitation those defined or regulated as
such under any Environmental Law, and any other substance the presence of which may give rise to
liability under any Environmental Law.
“Merger” has the meaning assigned in the Recitals.
“Merger Consideration” has the meaning assigned in Section 3.07(a).
“Minimum Condition” has the meaning assigned in Annex A.
“Modified Superior Proposal” has the meaning assigned in Section 6.06(f).
“Notice of Superior Proposal” has the meaning assigned in Section 6.06(f).
“Offer” has the meaning assigned in the Recitals.
“Offer Documents” has the meaning assigned in Section 2.01(f).
“Offer to Purchase” has the meaning assigned in Section 2.01(f).
“Owned Property” has the meaning assigned in Section 5.03(x)(2).
“Parent” has the meaning assigned in the Preamble to this Agreement.
“party” means Parent, Purchaser or the Company.
“Pension Plan” has the meaning assigned in Section 5.03(l)(2).
“Per Common Share Price” has the meaning assigned in Section 2.03(a).
“Permitted Lien” means any landlord’s liens; liens for Taxes not yet due and payable;
mechanic’s, materialmen’s and other inchoate liens; and other liens not material in nature or
amount.
“Per Share Amount” has the meaning assigned in the Recitals.
“person” is to be interpreted broadly to include any individual, corporation, limited
liability company, partnership, association, joint-stock company, business trust or unincorporated
organization.
“Plan of Merger” means the plan of merger contained in this Agreement.
6
“Previously Disclosed” means information set forth by the Company in the applicable paragraph
of the Disclosure Schedule, or any other paragraph of the Disclosure Schedule (so long as it is
reasonably clear from the context that the disclosure in such other paragraph of the Disclosure
Schedule is also applicable to the Section of this Agreement in question) or in the Company’s
Regulatory Filings (including any schedules and exhibits thereto) filed with the SEC prior to the
date of this Agreement.
“Proxy Statement” has the meaning assigned in Section 5.03(s)(2).
“Purchaser” has the meaning assigned in the Preamble to this Agreement.
“Purchaser Articles” means the Articles of Incorporation of Purchaser.
“Purchaser By-laws” means the Bylaws of Purchaser.
“Purchaser Common Stock” means the common stock, $0.01 par value, of Purchaser.
“Regulatory Filings” has the meaning assigned in Section 5.03(g)(1).
“Representatives” means, with respect to any person, such person’s directors, officers,
employees, legal or financial advisors or any representatives of such legal or financial advisors.
“Requisite Approvals” has the meaning assigned in Section 6.08(a).
“Rights” means, with respect to any person, securities or obligations convertible into or
exercisable or exchangeable for, or giving any other person any right to subscribe for or acquire,
or any options, calls or commitments relating to, or any stock appreciation right or other
instrument the value of which is determined in whole or in part by reference to the market price or
value of, shares of capital stock of such first person.
“Xxxxxxxx-Xxxxx Act” means the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
thereunder.
“Schedule 14D-9” has the meaning assigned in Section 2.02(b).
“Schedule TO” has the meaning assigned in Section 2.01(f).
“SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the U.S. Securities Act of 1933 and the rules and regulations
thereunder.
“Shareholders’ Meeting” has the meaning assigned in Section 6.02(a).
“Shares” has the meaning assigned in the Recitals.
“Subsidiary” and “Significant Subsidiary” have the meanings ascribed to those terms in Rule
1-02 of Regulation S-X promulgated by the SEC.
7
“Superior Proposal” means an Acquisition Proposal (with all references to “15%” in the
definition thereof deemed to be “662/3” for the purposes of this definition) made by any person on
terms that the Company Board determines in good faith, after consultation with the Company’s
financial and legal advisors, and considering such factors as the Company Board considers to be
appropriate (including the conditionality and the timing and likelihood of success of such
proposal), are more favorable to the Company and its shareholders than the Transactions.
“Surviving Corporation” has the meaning assigned in Section 3.01.
“Takeover Laws” has the meaning assigned in Section 5.03(m).
“Takeover Provisions” has the meaning assigned in Section 5.03(m).
“Tax” and “Taxes” means all federal, state, local or foreign taxes, charges, fees, levies or
other assessments, however denominated, including, without limitation, all net income, gross
income, gains, gross receipts, sales, use, ad valorem, goods and services, capital, production,
transfer, franchise, windfall profits, license, withholding, payroll, employment, disability,
employer health, excise, estimated, severance, stamp, occupation, property, environmental,
unemployment or other taxes, custom duties, fees, assessments or charges of any kind whatsoever,
together with any interest and any penalties, additions to tax or additional amounts imposed by any
taxing authority.
“Tax Returns” means any return, amended return or other report (including elections,
declarations, disclosures, schedules, estimates and information returns) required to be filed with
respect to any Tax.
“TBCA” means the Texas Business Corporation Act.
“TBOC” means the Texas Business Organizations Code.
“Tender and Voting Agreement” has the meaning assigned in the Recitals.
“Termination Date” has the meaning assigned in Section 8.01(e).
“Termination Fee” has the meaning assigned in Section 8.03(a).
“Top-Up Option” has the meaning assigned in Section 2.03(a).
“Top-Up Option Shares” has the meaning assigned in Section 2.03(a).
“Transactions” has the meaning assigned in Section 5.03(e).
1.02 Interpretation.
(a) In this Agreement, except as the context may otherwise require, references:
(1) to the Preamble, Recitals, Sections, Annexes or Schedules are to the
Preamble to, a Recital or Section of, or Annex or Schedule to, this Agreement;
8
(2) to this Agreement are to this Agreement and the Annexes and Schedules to it
taken as a whole;
(3) to any agreement (including this Agreement), contract, statute or
regulation are to the agreement, contract, statute or regulation as amended,
modified, supplemented, restated or replaced from time to time (in the case of an
agreement or contract, to the extent permitted by the terms thereof);
(4) to any section of any statute or regulation include any successor to that
section;
(5) to any Governmental Authority include any successor to that Governmental
Authority; and
(6) to the date of this Agreement are to July 15, 2008.
(b) The table of contents and Article and Section headings are for reference purposes
only and do not limit or otherwise affect any of the substance of this Agreement.
(c) The words “include,” “includes” or “including” are to be deemed followed by the
words “without limitation.”
(d) The words “herein,” “hereof” or “hereunder,” and similar terms are to be deemed to
refer to this Agreement as a whole and not to any specific Section.
(e) This Agreement is the product of negotiation by the parties, which have had the
assistance of counsel and other advisers. The parties intend that this Agreement not be
construed more strictly with regard to one party than with regard to another.
(f) No provision of this Agreement is to be construed to require, directly or
indirectly, any person to take any action, or omit to take any action, to the extent such
action or omission would violate applicable law (including statutory and common law), rule
or regulation.
ARTICLE II
The Offer
2.01 The Offer.
(a) Purchaser shall commence the Offer no later than August 1, 2008. The obligation of
Purchaser to accept for payment Shares tendered pursuant to the Offer shall be subject to
the satisfaction of each of the conditions set forth in Annex A. Purchaser expressly
reserves the right to waive any such condition, to increase the price per Share payable in
the Offer and to make any other changes in the terms and conditions of the Offer, subject to
the provisions of Section 2.01(b) below.
9
(b) Purchaser shall not, without the prior written consent of the Company, (1) decrease
the Per Share Amount or change the form of consideration payable in the Offer, (2) reduce
the maximum number of Shares to be purchased in the Offer, (3) impose conditions to the
Offer in addition to those set forth in Annex A, (4) waive or change the condition in clause
(iii) of Annex A, or (5) amend any other term of the Offer in a manner adverse to the
Company’s shareholders.
(c) Purchaser may from time to time extend the Offer beyond the scheduled expiration
date, which shall initially be August 29, 2008, for up to five Business Days in each
instance (or for such different period to which the Company shall reasonably agree) if, at
the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to
accept for payment Shares shall not be satisfied or waived; provided, however, that
Purchaser shall, at the written request of the Company received at least two Business Days
prior to the scheduled expiration date, extend the Offer for up to an aggregate of ten
Business Days if any of the conditions set forth in clauses (i) through (iii) of the first
paragraph of Annex A have not been met to permit such condition to be satisfied. In
addition, if all of the conditions to the Offer are satisfied or waived but the number of
shares of Company Common Stock validly tendered and not withdrawn, together with the shares
of Company Common Stock held by Parent and Purchaser, if any, is less than 90% of the
then-outstanding number of shares of Company Common Stock, then upon the applicable
expiration date of the Offer, Purchaser may provide “subsequent offering periods,” as such
term is defined in, and in accordance with, Rule 14d-11 under the Exchange Act, for an
aggregate period not to exceed 20 Business Days (for all such extensions) and Purchaser
shall (1) give the required notice of such subsequent offering period and (2) immediately
accept and promptly pay for all Shares tendered as of such applicable expiration date.
(d) Promptly upon the satisfaction or waiver (to the extent such condition is waiveable
pursuant hereto) by Purchaser of the conditions set forth in Annex A, Purchaser shall accept
for payment and pay for all Shares as promptly as practicable after the expiration date of
the Offer, as extended or amended (the date of acceptance for payment, the “Acceptance
Date”).
(e) The Per Share Amount shall, subject to applicable withholding of Taxes, be paid net
to the seller in cash, without interest, upon the terms and subject to the conditions of the
Offer. Purchaser shall pay for all Shares validly tendered and not withdrawn promptly
following the acceptance of Shares for payment pursuant to the Offer. Notwithstanding the
immediately preceding sentence and subject to the applicable rules of the SEC and the terms
and conditions of the Offer, Purchaser expressly reserves the right to delay payment for
Shares in order to comply in whole or in part with applicable laws. Any such delay shall be
effected in compliance with Rule 14e-1(c) under the Exchange Act. If the payment equal to
the Per Share Amount in cash is to be made to a person other than the person in whose name
the surrendered certificate formerly evidencing Shares is registered on the stock transfer
books of the Company, it shall be a condition of payment that the certificate so surrendered
shall be endorsed properly or otherwise be in proper form for transfer and that the person
requesting such payment shall have paid all transfer and other similar Taxes required by
reason of the
10
payment of the Per Share Amount to a person other than the registered holder of the
certificate surrendered, or shall have established to the satisfaction of Purchaser that
such Taxes either have been paid or are not applicable.
(f) As promptly as reasonably practicable on the date of commencement of the Offer,
Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all
amendments and supplements thereto, the “Schedule TO”) with respect to the Offer. The
Schedule TO shall contain or shall incorporate by reference an offer to purchase (the “Offer
to Purchase”) and forms of the related letter of transmittal and other customary documents
(the Schedule TO, the Offer to Purchase and such other documents, together with all
supplements and amendments thereto, being referred to herein collectively as the “Offer
Documents”). Parent, Purchaser and the Company agree to correct promptly any information
provided by any of them for use in the Offer Documents that shall have become false or
misleading, and Parent and Purchaser further agree to take all steps necessary to cause the
Schedule TO, as so corrected, to be filed with the SEC, and the other Offer Documents, as so
corrected, to be disseminated to holders of Shares, in each case as and to the extent
required by applicable federal securities laws to give effect to the Offer. The Company and
its counsel shall be given a reasonable opportunity to review and comment upon the Offer
Documents and all amendments and supplements thereto prior to their filing with the SEC.
2.02 Company Action.
(a) Subject to Section 6.06(e), the Company hereby consents to the Offer and the
inclusion in the Offer Documents of the Company Board Recommendation.
(b) On the date of commencement of the Offer (and subject to Purchaser providing drafts
of its Offer Documents to the Company at least three Business Days before commencement of
the Offer), the Company shall file with the SEC a Solicitation/Recommendation Statement on
Schedule 14D-9 (together with all amendments and supplements thereto, the “Schedule 14D-9”)
containing the recommendation of the Company Board described in Section 2.02(a), and shall
disseminate the Schedule 14D-9 as required by Rule 14d-9 promulgated under the Exchange Act
and any other applicable federal securities laws with the Offer Documents. The Company,
Parent and Purchaser will correct promptly any information provided by any of them for use
in the Schedule 14D-9 which shall have become false or misleading, and the Company will take
all steps necessary to cause the Schedule 14D-9, as so corrected, to be filed with the SEC
and disseminated to holders of Shares, in each case as and to the extent required by
applicable federal securities laws. Parent and its counsel shall be given a reasonable
opportunity to review and comment upon the Schedule 14D-9 and all amendments and supplements
thereto prior to their filing with the SEC.
(c) The Company shall cause its transfer agent to furnish Purchaser with mailing labels
or electronic files containing the names and addresses of all record holders of Shares and
with security position listings of Shares held in stock depositories, each as of a recent
date, together with all other available listings and computer files containing names,
addresses and security position listings of record holders and beneficial owners of
11
Shares. The Company shall furnish Purchaser with such additional information,
including, without limitation, updated listings and computer files of shareholders, mailing
labels and security position listings, and such other assistance in disseminating the Offer
Documents to holders of Shares as Parent or Purchaser may reasonably request. The Company,
the Parent and the Purchaser agree to disseminate the Offer Documents and Schedule 14D-9 to
the holders of Shares together in the same mailing or other form of distribution. Subject
to the requirements of applicable law, and except for such steps as are necessary to
disseminate the Offer Documents and any other documents necessary to consummate the Offer or
the Merger, Parent and Purchaser shall treat the information contained in such labels,
listings and files as “Evaluation Material” pursuant to the Confidentiality Agreement.
2.03 Top-Up Option.
(a) Grant of Top-Up Option. The Company hereby grants to Purchaser an irrevocable
option (the “Top-Up Option”) to purchase, at a price per share equal to the Per Share Amount
(the “Per Common Share Price”), a number (but not less than that number) of newly issued
Shares (the “Top-Up Option Shares”) that, when added to the number of Shares owned, directly
or indirectly, by Parent or Purchaser at the time of exercise of the Top-Up Option,
constitutes one Share more than 90% of the number of Shares that will be outstanding
immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may be
exercised, in whole but not in part, at any time on or after the Acceptance Date and prior
to the earlier to occur of (i) the Effective Time and (ii) the termination of this Agreement
in accordance with Article VIII; provided, however, that the obligation of the Company to
deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the
conditions that (A) no provision of any applicable law and no judgment, injunction, order or
decree of any Governmental Authority shall prohibit or require any action, consent,
approval, authorization or permit of, action by, or filing with or notification to any
Governmental Authority in connection with the exercise of the Top-Up Option or the delivery
of the Top-Up Option Shares in respect of such exercise, (B) upon exercise of the Top-Up
Option, the number of Shares owned, directly or indirectly, by Parent or Purchaser
constitutes one Share more than 90% of the number of Shares that will be outstanding
immediately after the issuance of the top Up Option Shares, (C) the number of Top-Up Option
Shares issued pursuant to the Top-Up Option shall in no event exceed the number of
authorized and unissued Shares not otherwise reserved for issuance for outstanding Company
Stock Options or other obligations of the Company, and (D) Purchaser has accepted for
payment and paid for all Shares validly tendered in the Offer and not validly withdrawn.
The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is
accomplished consistent with all applicable Laws. Purchaser shall, concurrently with the
exercise of the Top-Up Option, give written notice to the Company that as promptly as
practicable following such exercise, Purchaser shall (and Parent shall cause Purchaser to)
consummate the Merger in accordance with Article 5.16 of the TBCA as contemplated by this
Agreement. Parent shall cause the Surviving Corporation to file to deregister the Company
Common Stock under the U.S. federal securities laws concurrently with consummating the
Merger in accordance with Article 5.16 of the TBCA.
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(b) Exercise of Top-Up Option. Upon the exercise of the Top-Up Option in accordance
with Section 2.03(a), Purchaser shall so notify the Company and shall set forth in such
notice (i) the number of Shares expected to be owned, directly or indirectly, by Parent or
Purchaser immediately preceding the purchase of the Top-Up Option Shares and (ii) a place
and time for the closing of the purchase of the Top-Up Option Shares. The Company shall, as
soon as practicable following receipt of such notice, notify Purchaser of the number of
Shares then outstanding and the number of Top-Up Option Shares. At the closing of the
purchase of the Top-Up Option Shares, Purchaser shall pay the Company the aggregate price
required to be paid for the Top-Up Option Shares pursuant to this Section 2.03, and the
Company shall cause to be issued to Purchaser a certificate representing the Top-Up Option
Shares, which may include any legends required by applicable securities laws. The aggregate
purchase price payable for the Top-Up Option Shares may be paid, at the election of
Purchaser or Parent, by Purchaser by executing and delivering to the Company a promissory
note having a principal amount equal to the balance of the aggregate purchase price for the
Top-Up Option Shares. Any such promissory note shall bear interest at the rate of interest
per annum equal to 3%, shall mature on the first anniversary of the date of execution and
delivery of such promissory note and may be prepaid without premium or penalty.
(c) Securities Law Compliance. Parent and Purchaser understand that the Shares that
Purchaser may acquire upon exercise of the Top-Up Option will not be registered under the
Securities Act, and will be issued in reliance upon an exemption thereunder for transactions
not involving a public offering. Parent and Purchaser represent and warrant to the Company
that Purchaser is, and will be upon exercise of the Top-Up Option, an “accredited investor”
(as defined in Rule 501 of Regulation D promulgated under the Securities Act). Purchaser
agrees that the Top-Up Option and the Top-Up Shares to be acquired upon exercise thereof are
being and will be acquired for the purpose of investment and not with a view to or for
resale in connection with any distribution thereof within the meaning of the Securities Act.
(d) Adjustment upon Changes in Capitalization. In the event of any change in the number
of shares of outstanding Company Common Stock by reason of any stock dividend, stock split,
recapitalization, combination, exchange of shares, merger, consolidation, reorganization or
the like or any other change in the corporate or capital structure of the Company that would
have the effect of diluting Purchaser’s rights under the Top-Up Option, the number of Top-Up
Option Shares and the Per Common Share Price shall be adjusted appropriately so as to
restore Purchaser to its rights hereunder with respect to the Top-Up Option; provided,
however, that nothing in this Section 2.03 shall be construed as permitting the Company to
take any action or enter into any transaction otherwise prohibited by this Agreement.
ARTICLE III
The Merger
3.01 The Merger. Upon the terms and subject to the conditions set forth in this Agreement and
in accordance with the provisions of the TBCA and the TBOC, Purchaser will
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merge with and into the Company at the Effective Time. At the Effective Time the separate
corporate existence of Purchaser will terminate. The Company will be the surviving corporation
(the “Surviving Corporation”) and will continue its corporate existence under the laws of the State
of Texas.
3.02 Closing. The closing of the Merger (the “Closing”) will take place in the offices of
Fulbright & Xxxxxxxx L.L.P., 0000 Xxxx Xxx., Xxxxx 0000, Xxxxxx, Xxxxx, at 10:00 a.m. prevailing
Central time, on the second Business Day (unless the parties agree to another time or date) after
satisfaction or waiver of the conditions set forth in Article VII, other than those conditions that
by their nature are to be satisfied at the Closing but subject to the fulfillment or waiver of
those conditions (the “Closing Date”).
3.03 Effective Time. As promptly as practicable after the consummation of the Offer, and the
satisfaction or waiver (if permitted) of the conditions of the Merger set forth in Article VII, the
parties shall cause the Merger to be consummated by executing and delivering articles of merger
(the “Articles of Merger”) to the Secretary of State of the State of Texas for filing under Article
5.04 of the TBCA and Section 10.153 of the TBOC, as required. The parties will make all other
filings or recordings required under the TBCA and the TBOC, and the Merger will become effective
when the Articles of Merger are filed in the office of the Secretary of State of the State of Texas
and a certificate of merger (the “Certificate of Merger”) is issued by the office of the Secretary
of State of the State of Texas, or at such later date or time as Parent and the Company shall agree
and specify in the Articles of Merger in accordance with the TBCA and the TBOC (the time the Merger
becomes effective being the “Effective Time”).
3.04 Effects of the Merger. The Merger will have the effects prescribed by the TBCA, TBOC and
other applicable law.
3.05 Articles of Incorporation and By-laws.
(a) The certificate of formation of Purchaser, as in effect immediately before the
Effective Time, will be the certificate of formation of the Surviving Corporation as of the
Effective Time, except for Article One thereof which shall be amended to read as follows:
“The name of this corporation is Intervoice, Inc.” As of the Effective Time, the Surviving
Corporation will be deemed to have voluntarily elected to adopt and be subject to the TBOC
pursuant to Section 402.003 of the TBOC.
(b) The Purchaser By-laws, as in effect immediately before the Effective Time, will be
the by-laws of the Surviving Corporation as of the Effective Time except that the name of
Purchaser shall be changed therein to be “Intervoice, Inc.” and except that the Purchaser
By-laws shall, to the extent that they do not do so, be amended (and be deemed to be so
amended) as of the Effective Time to effectuate the obligations of Parent and the Surviving
Corporation provided in Sections 6.09(a) and (b).
3.06 Directors and Officers. The directors and officers of Purchaser immediately prior to the
Effective Time shall be the directors and officers of the Surviving Corporation as of the Effective
Time.
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3.07 Conversion or Cancellation of Shares. At the Effective Time, by virtue of the Merger and
without any action on the part of any shareholder:
(a) Each share of Company Common Stock issued and outstanding immediately prior to the
Effective Time, other than Exception Shares (which shares shall be cancelled and shall cease
to exist with no payment being made with respect thereto) and Dissenting Shares (which
shares shall be treated in accordance with Section 3.10) shall be converted into and
constitute the right to receive cash in an amount equal to the Per Share Amount, without
interest (the “Merger Consideration”). At the Effective Time, all shares of Company Common
Stock that have been converted into the right to receive the Merger Consideration as
provided in this Section 3.07(a) shall no longer be outstanding and shall be cancelled and
shall cease to exist, and each holder of a certificate that immediately prior to the
Effective Time represented such shares of Company Common Stock (a “Certificate”) shall cease
to have any rights with respect thereto, except the right to receive the Merger
Consideration.
(b) Each issued and outstanding share of Purchaser Common Stock shall be converted into
one fully paid and nonassessable share of common stock, $0.01 par value, of the Surviving
Corporation.
3.08 Exchange of Certificates; Payment of the Merger Consideration.
(a) Appointment of Disbursing Agent. At or prior to the Effective Time, Parent shall
deposit with a disbursing agent agreed upon by Parent and the Company (the “Disbursing
Agent”) cash in an amount sufficient to allow the Disbursing Agent to make all payments that
may be required pursuant to this Article III. Parent shall be obligated to, from time to
time, deposit any additional funds necessary to make all payments that may be required by
this Article III. Any such cash remaining in the possession of the Disbursing Agent twelve
months after the Effective Time (together with any earnings in respect thereof) shall be
delivered to Parent and any holder of Certificates who has not theretofore exchanged such
Certificates pursuant to this Article III shall thereafter be entitled to look exclusively
to Parent and/or the Surviving Corporation, and only as a general creditor thereof, for the
consideration to which such holder may be entitled upon exchange of such Certificates
pursuant to this Article III. Notwithstanding the foregoing, neither the Disbursing Agent
nor any party hereto shall be liable to any holder of Certificates for any amount properly
delivered to a public official pursuant to applicable abandoned property, escheat or similar
laws.
(b) Exchange Procedures. Promptly after the Effective Time, but in no event later than
two Business Days thereafter, Parent shall cause the Disbursing Agent to mail or deliver to
each person who was, immediately prior to the Effective Time, a holder of record of Company
Common Stock, a form of letter of transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to Certificates shall pass, only upon proper delivery
of such certificates to the Disbursing Agent) containing instructions for use in effecting
the surrender of Certificates in exchange for the consideration to which such person is
entitled pursuant to this Article III. Upon surrender to the Disbursing Agent of a
Certificate for cancellation together with such letter of transmittal,
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duly executed and completed in accordance with the instructions thereto, the holder of
such Certificate shall promptly be provided in exchange therefor cash in the amount to which
such holder is entitled pursuant to this Article III, and the Certificate so surrendered
shall forthwith be canceled. No interest will accrue or be paid with respect to any
consideration to be delivered upon surrender of Certificates.
(c) Transfer to Holder other than Existing Holder. If any cash payment is to be made
in a name other than that in which the Certificate surrendered in exchange therefor is
registered, it shall be a condition of such payment that the person requesting such payment
shall pay any transfer or other similar Taxes required by reason of the making of such
payment in a name other than that of the registered holder of the Certificate surrendered,
or required for any other reason relating to such holder or requesting person, or shall
establish to the reasonable satisfaction of the Disbursing Agent that such Tax has been paid
or is not payable.
(d) Transfers. At or after the Effective Time, there shall be no transfers registered
on the stock transfer books of the Surviving Corporation of Company Common Stock or
Certificates that were outstanding immediately prior to the Effective Time.
(e) Lost, Stolen or Destroyed Certificates. If any Certificate shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person claiming
such Certificate to be lost, stolen or destroyed and, if required by the Surviving
Corporation or the Disbursing Agent, the posting by such person of a bond in such reasonable
amount as the Surviving Corporation or the Disbursing Agent may direct as indemnity against
any claim that may be made against it with respect to such Certificate, the Surviving
Corporation or the Disbursing Agent shall, in exchange for such lost, stolen or destroyed
Certificate, pay or cause to be paid the consideration deliverable in respect of Company
Common Stock formerly represented by such Certificate pursuant to this Article III.
3.09 Stock Incentives.
(a) The Company shall use its reasonable best efforts to cause each holder of options
to purchase Company Common Stock granted under a Company Stock Plan (each, a “Company Stock
Option”) and each holder of restricted stock units representing shares of Company Common
Stock granted under a Company Stock Plan (each, a “Company RSU”) to agree, if and to the
extent required by the applicable Company Stock Plan or applicable law, no later than
immediately prior to the Effective Time, that each Company Stock Option and Company RSU
outstanding at the Effective Time shall be canceled automatically at the Effective Time and
shall thereafter represent only the right to receive an amount of cash (i) in respect of
each such Company Stock Option, equal to the product of (A) the excess, if any, of (x) the
Per Share Amount over (y) the exercise price per share of the Company Common Stock subject
to such Company Stock Option and (B) the number of shares of Company Common Stock subject to
such Company Stock Option immediately prior to its cancellation, regardless of the vested
status of such Company Stock Option, and (ii) in respect of each such Company RSU, equal to
the product of (A) the Per Share Amount and (B) the number of shares of Company Common
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Stock subject to such Company RSU immediately prior to its cancellation, regardless of
the vested status of such Company RSU.
(b) All amounts payable pursuant to this Section shall be subject to any required
withholding of Taxes and shall be paid at or as soon as practicable following the Effective
Time, but in any event within five Business Days following the Effective Time, without
interest; provided, however, that if a Company RSU provides for the deferral of compensation
subject to Code Section 409A, any amount payable with respect to such Company RSU shall be
paid on January 2, 2009; provided, further, that if any portion of a Company RSU that is
subject to Code Section 409A is otherwise payable in accordance with its terms during 2008,
such portion shall be paid on the date during 2008 provided under the agreement governing
the Company RSU. The cancellation of a Company Stock Option or Company RSU in exchange for
the cash payment described in this Section shall be deemed a release of any and all rights
the holder of such Company Stock Option or Company RSU had or may have had in respect
thereof, and any required consents from all such holders shall so provide.
(c) Prior to the Effective Time, the Company Board (or, if appropriate, any committee
administering the Company Stock Plans) shall take or cause to be taken such actions as are
required to cause (i) the Company Stock Plans to terminate as of the Effective Time, without
prejudice to the holders of Company Stock Options and Company RSUs, and (ii) the provisions
in any other Company benefit plan providing for the issuance, transfer or grant of any
capital stock of the Company or any interest in respect of any capital stock of the Company
to be deleted as of the Effective Time.
(d) Prior to the Effective Time, the Company Board or an appropriate committee of
non-employee directors shall adopt a resolution consistent with the interpretative guidance
of the SEC so that the disposition of Shares, Company Stock Options or Company RSUs pursuant
to this Agreement and the Merger by any officer or director of the Company who is a covered
person of the Company for purposes of Section 16 of the Exchange Act shall be an exempt
transaction for purposes of Section 16 of the Exchange Act.
3.10 Dissenting Shareholders.
(a) Each Dissenting Share shall not be converted into or represent a right to receive
the Merger Consideration hereunder, and the holder thereof shall be entitled only to such
rights as are granted by Articles 5.13 or 5.16 of the TBCA. The Company shall give Parent
notice as promptly as reasonably practicable upon receipt by the Company of any demand for
payment pursuant to Articles 5.12 or Article 5.16 of the TBCA and of withdrawals of such
notice (any shareholder duly making such demand being hereinafter called a “Dissenting
Shareholder”), and Parent shall have the right to participate in all negotiations and
proceedings with respect to any such demands. Any payments made in respect of Dissenting
Shares shall be made by Parent and/or the Surviving Corporation.
(b) If any Dissenting Shareholder shall effectively withdraw or lose (through failure
to perfect or otherwise) such holder’s right to dissent under Articles 5.13 or 5.16
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of the TBCA, each of such holder’s shares of Company Common Stock shall be converted
solely into a right to receive the Merger Consideration in accordance with the applicable
provisions of this Agreement.
ARTICLE IV
Conduct of Business Pending the Merger
4.01 Agreements of the Company. The Company agrees that from the date of this Agreement until
the Appointment Time (as defined in Section 6.12(a)), except as expressly contemplated by this
Agreement or as Previously Disclosed, without the prior written consent of Parent (which consent
will not be unreasonably withheld, delayed, or conditioned), it will not, and will cause each of
its Significant Subsidiaries not to:
(a) Ordinary Course. Conduct its business and the business of its Significant
Subsidiaries other than in the ordinary and usual course in all material respects or fail to
use commercially reasonable efforts to preserve intact, in all material respects, their
business organizations.
(b) Operations. Enter into any new material line of business or change its material
operating policies except as required by applicable law, regulation or policies imposed by
any Governmental Authority.
(c) Capital Stock and Other Securities. Other than pursuant to Rights Previously
Disclosed and outstanding on the date of this Agreement, (1) issue, sell or otherwise permit
to become outstanding or dispose of or encumber or pledge, or authorize or propose the
creation of, any additional shares of its stock or any other securities (including long-term
debt) or any Rights with respect to its stock or any other securities, or (2) permit any
additional shares of its stock to become subject to new grants under Company Stock Plans or
otherwise.
(d) Dividends, Distributions, Repurchases. (1) Make, declare, pay or set aside for
payment any dividend on or in respect of, or declare or make any distribution on any shares
of its stock, other than dividends from its wholly owned Subsidiaries to it or another of
its wholly owned Subsidiaries or (2) directly or indirectly adjust, split, combine, redeem
or reclassify, or purchase or otherwise acquire any shares of its stock.
(e) Dispositions. Sell, transfer, mortgage, encumber or otherwise dispose of any of
its assets, business or properties, except for sales, transfers, mortgages, encumbrances or
other dispositions in the ordinary course of business consistent with past practice.
(f) Acquisitions. Acquire all or any portion of the assets, business, properties or
shares of stock or other securities of any other person other than the purchase of assets
and properties in the ordinary course of business.
(g) Constituent Documents. Amend its Constituent Documents.
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(h) Accounting Methods. Implement or adopt any change in its financial accounting
principles, practices or methods, other than as may be required by GAAP or regulatory
accounting requirements applicable to U.S.-publicly owned business organizations generally.
(i) Compensation; Employment Agreements; Etc. Enter into, amend, modify or renew any
employment, consulting, change in control or similar contract, agreement or arrangement with
any director or employee, or grant any salary or wage increase, equity awards or incentive
or bonus payments, except (1) to make changes that are required by applicable law or the
terms of a Benefit Arrangement, (2) to grant merit-based or annual salary increases in the
ordinary and usual course of business and in accordance with past practice, (3) for
employment arrangements for, or grants of awards to, newly hired employees or promoted
employees in the ordinary and usual course of business consistent with past practice or (4)
to make such contract, agreement or arrangement comply with or exempt from Section 409A of
the Code.
(j) Benefit Plans. Enter into, establish, adopt, amend, modify or renew any pension,
retirement, stock option, stock purchase, savings, profit sharing, deferred compensation,
bonus, group insurance or other employee benefit, incentive or welfare contract, plan or
arrangement or any trust agreement in respect of any director, officer or employee or take
any action to accelerate the vesting or exercisability of stock options, restricted stock or
other compensation or benefits payable thereunder, except (1) as provided in Sections 3.09
hereof, (2) as may be required by applicable law or the terms of a Benefit Arrangement, (3)
amendments that do not increase benefits or result in increased administrative costs, or (4)
amendments to make any such contract, plan, trust or arrangement comply with or exempt from
Section 409A of the Code or other applicable law.
(k) Indebtedness. (i) Incur any indebtedness for borrowed money other than borrowings
pursuant to the Company’s and its Subsidiaries’ revolving credit arrangements or under
capital leases, in each case, in effect on the date hereof in the ordinary course,
consistent with past practice, (ii) issue, sell or amend any debt securities or other rights
to acquire any debt securities of the Company or any of its Subsidiaries, guarantee any debt
securities of another person, enter into any “keep well” or other agreement to maintain any
financial statement condition of another person or enter into any arrangement having the
economic effect of any of the foregoing, or (iii) other than to Subsidiaries of the Company,
make any loans, advances or capital contributions to, or investment in, or repay any
indebtedness owing to, any person other than the repayment of indebtedness existing as of
the date hereof at maturity in accordance with its terms or make any change in its existing
borrowing or lending arrangements for or on behalf of any such person; (iv) pledge or
otherwise encumber shares of capital stock of the Company or any of its Subsidiaries; (v)
mortgage, pledge or otherwise encumber any of its material assets, tangible or intangible,
or create or suffer to exist any material lien thereupon; or (vi) waive or release any
rights of material value.
(l) Discharge Liabilities. Pay, discharge, settle, compromise, commence or satisfy in
an amount individually or in the aggregate in excess of $500,000 any material
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claims, actions, litigation, arbitration (absolute, accrued, asserted or unasserted,
contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary
course of business consistent with past practice or to the extent provided for in reserves
specific to such claim, liability or obligation and specifically reflected on the balance
sheet as of May 31, 2008 included in the Company’s Regulatory Filings filed with the SEC
prior to the date hereof.
(m) Liquidate. Adopt a plan of complete or partial liquidation or adopt resolutions
providing for the complete or partial liquidation, dissolution, consolidation, merger,
restructuring or recapitalization of the Company or any of its Subsidiaries.
(n) Taxes. Change any material method of Tax accounting or settle or compromise any
material Tax liability of the Company or any of its Subsidiaries, and, in any event, the
Company shall consult with Parent before filing or causing to be filed any material Tax
return of the Company or any of its Subsidiaries, except to the extent such Tax return is
filed in the ordinary course of business consistent with past practice, and before executing
or causing to be executed any agreement or waiver extending the period for assessment or
collection of any material Taxes of the Company or any of its Subsidiaries.
(o) Material Contracts. (i) Except in the ordinary course of business consistent with
past practice (i) terminate, amend or modify (in any material respect), or waive any
material provision of, any Material Contract or (ii) enter into any contract that would have
been a Material Contract had it been entered into prior to the execution of this Agreement;
provided, that in the case of a Material Contract for the sale of products and services to
customers, Company and its Significant Subsidiaries may enter into, amend or modify a
Material Contract, that (A) to the Company’s Knowledge, is not a “loss contract”, (B) does
not compromise the intellectual property rights of the Company or any Significant Subsidiary
in any material respect, (C) does not restrict in any material respect the conduct of
business by the Company or any Significant Subsidiary or its or their ability to compete in
any line of business, and (D) based on the terms and conditions of such Material Contract
and the obligations of the Company and its Significant Subsidiaries thereunder, when
considered in the aggregate, would not reasonably be expected to be adverse to the Company
and its Significant Subsidiaries.
(p) Non-Competes. Enter into any agreement containing any provision or covenant
limiting in any material respect the ability of the Company or any of its Subsidiaries to
(i) sell any products or services of or to any other person, (ii) engage in any line of
business, or (iii) compete with or obtain products or services from any person or limiting
the ability of any person to provide products or services to the Company or any of its
Subsidiaries, in each case, in any geographic area or during any period of time.
(q) Discontinue Operations. Close any facilities of the Company or any Subsidiary of
the Company or discontinue any line of business.
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(r) Adverse Actions. Take, or omit to take, any action that would reasonably be
expected to result in any of the conditions to the Offer set forth on Annex A or to the
Merger set forth in Article VII not being satisfied in a timely manner.
(s) Commitments. Enter into any contract with respect to, or otherwise agree or commit
to do, directly or indirectly, any of the foregoing.
4.02 Agreements of Parent. Parent agrees that, from the date hereof until the Effective Time,
without the prior written consent of the Company, it will not, and will cause each of its
Subsidiaries not to take, or omit to take, any action that would reasonably be expected to result
in any of the conditions to the Offer set forth on Annex A or to the Merger set forth in Article
VII not being satisfied in a timely manner, including entering into agreements with respect to any
acquisitions, mergers, consolidations or business combinations.
ARTICLE V
Representations and Warranties
5.01 Disclosure Schedules. Before entry into this Agreement, the Company delivered to Parent
a schedule (the “Disclosure Schedule”) setting forth, among other things, items the disclosure of
which is necessary or appropriate either (a) in response to an express disclosure requirement
contained in a provision hereof or (b) as an exception to one or more representations or warranties
contained in Section 5.03 or to one or more of its covenants contained in Article IV; provided that
the inclusion of an item in the Disclosure Schedule as an exception to a representation or warranty
will not by itself be deemed an admission by the Company that such item is material or was required
to be disclosed therein.
5.02 Standard for Breach of Representations and Warranties. For all purposes of this
Agreement, no representation or warranty of the Company or Parent contained in Section 5.03 (other
than the representations and warranties contained in Section 5.03(b)(1) (other than de minimis
variations), 5.03(m) and Section 5.03(w),which shall be true in all respects) will be deemed
untrue, and no party will be deemed to have breached a representation or warranty, where such
failure to be true or breach of such representation or warranty would not reasonably be expected to
have a Material Adverse Effect with respect to the Company or Parent, as the case may be.
5.03 Representations and Warranties. Except as Previously Disclosed, the Company hereby
represents and warrants to Parent, and Parent hereby represents and warrants to the Company, except
where specifically indicated as applicable only to the Company or Parent, as the case may be, as
follows:
(a) Organization and Standing. It is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation. It is duly
qualified to do business and is in good standing in all jurisdictions where its ownership or
leasing of property or assets or its conduct of business requires it to be so qualified.
(b) Company Stock. In the case of the Company only:
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(1) The authorized capital stock of the Company consists of 2,000,000 shares of
Company Preferred Stock and 62,000,000 shares of Company Common Stock. As of July
14, 2008, no shares of Company Preferred Stock were issued and outstanding. As of
July 14, 2008, no more than 39,063,192 shares of Company Common Stock were issued
and outstanding. As of July 14, 2008, no more than 6,212,182 shares of Company
Common Stock were issuable upon exercise of Company Stock Options under Company
Stock Plans. As of July 14, 2008, no more than 653,427 shares of Company Common
Stock were issuable upon vesting of Company RSUs under Company Stock Plans. As of
July 14, 2008, no shares of Company Common Stock were issuable upon exercise of any
other Rights under Company Stock Plans.
(2) The outstanding shares of Company Common Stock have been duly authorized
and are validly issued and outstanding, fully paid and nonassessable, and not
subject to preemptive rights (and were not issued in violation of any preemptive
rights). Except as set forth above and except for shares issuable pursuant to
Company Stock Plans and the Company Rights Agreement, there are no shares of Company
Stock reserved for issuance, the Company does not have any Rights outstanding with
respect to Company Stock and the Company does not have any commitment to authorize,
issue or sell any Company Common Stock, Company Preferred Stock or Rights, except
pursuant to this Agreement, outstanding Company Stock Options, outstanding Company
RSUs and Company Stock Plans. The Company has no commitment to redeem, repurchase
or otherwise acquire any shares of Company Common Stock. Other than the Tender and
Voting Agreements and the Governance Agreement, there are no shareholder agreements,
voting trusts or other arrangements or understandings to which the Company is a
party with respect to voting stock or other equity interests of the Company.
(c) Company Significant Subsidiaries. In the case of the Company only:
(1) (A) It owns, directly or indirectly, all the outstanding equity securities
of each of its Significant Subsidiaries free and clear of any Liens, (B) no equity
securities of any of its Significant Subsidiaries are or may become required to be
issued (other than to it or its wholly owned Subsidiaries) by reason of any Right or
otherwise, (C) there are no contracts, commitments, understandings or arrangements
by which any of such Significant Subsidiaries is, or may be, bound to sell or
otherwise transfer any equity securities of any such Significant Subsidiaries (other
than to it or its wholly-owned Subsidiaries), (D) there are no contracts,
commitments, understandings or arrangements relating to its rights to vote or to
dispose of such securities and (E) all the equity securities of each Significant
Subsidiary held by it or its Significant Subsidiaries have been duly authorized and
are validly issued and outstanding, fully paid and nonassessable.
(2) Each of its Significant Subsidiaries has been duly organized and is validly
existing in good standing under the laws of the jurisdiction of its
22
organization, and is duly qualified to do business and in good standing in all
jurisdictions where its ownership or leasing of property or its conduct of business
requires it to be so qualified.
(d) Power. It and, in the case of the Company only, each of its Significant
Subsidiaries, has the corporate (or comparable) power and authority to carry on its business
as it is now being conducted and to own all its properties and assets; and it has the
corporate (or comparable) power and authority to execute, deliver and perform its
obligations under this Agreement and to consummate the Transactions.
(e)
Authority. It has duly authorized, executed and delivered this Agreement. Subject only in the case of the Company to the extent required under the TBCA
to receipt of the affirmative vote of the holders of two-thirds of the outstanding shares of
Company Common Stock to approve the Plan of Merger (the “Company Shareholder Approval”),
this Agreement and the Transactions have been authorized by all necessary respective
corporate action. In the case of the Company only, at a meeting duly called and held, the
Company Board has (1) determined that this Agreement, the Tender and Voting Agreements and
the transactions contemplated hereby, including each of the Offer and the Merger
(collectively, the “Transactions”), are fair to, and in the best interests of, the holders
of Shares, (2) approved, adopted and declared advisable this Agreement, the Tender and
Voting Agreements and the Transactions (such approval and adoption having been made in
accordance with the TBCA, including the Business Combination Law), (3) approved the
amendment of, and resolved to amend, the Company Rights Agreement and the Governance
Agreement and (4) resolved to recommend that the Company’s shareholders accept the Offer and
tender Shares pursuant to the Offer (the “Company Board Recommendation”); provided, however,
that any withdrawal, modification or qualification of such recommendation in accordance with
Section 6.06 shall not be deemed a breach of this Section 5.03(e). This Agreement is its
valid and legally binding obligation, enforceable in accordance with its terms (except as
enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and similar laws of general applicability relating to or affecting
creditors’ rights or by general equity principles).
(f) Regulatory Approvals; No Defaults.
(1) No consents or approvals of, or filings or registrations with, any
Governmental Authority or with any third party are required to be made or obtained
by it or, in the case of the Company only, any of its Significant Subsidiaries in
connection with the execution, delivery or performance by it of this Agreement or to
consummate the Offer or the Merger, except for (A) filings of applications and
notices with, receipt of approvals or non-objections from, and expiration of related
waiting periods, required by U.S. federal or foreign Governmental Authorities, (B)
filing of notices, and expiration of the related waiting period, under the HSR Act,
(C) filings as may be required by the Securities Act or the Exchange Act, (D) in the
case of the Company only, receipt
23
of the Company Shareholder Approval, and (E) the filings required by the TBCA
and the TBOC.
(2) Subject to receipt of the consents and approvals referred to in the
preceding paragraph, and the expiration of related waiting periods, and required
filings with U.S. federal or foreign Governmental Authorities, the execution,
delivery and performance of this Agreement, the Tender and Voting Agreements and the
consummation of the Transactions do not and will not (A) constitute a breach or
violation of, or a default under, or give rise, in the case of the Company only, to
any Lien or any acceleration of remedies, penalty, increase in material benefit
payable or right of termination under, any law, rule or regulation or any judgment,
decree, order, governmental permit or license, or Material Contract, indenture or
instrument of it or, in the case of the Company only, of any of its Significant
Subsidiaries or to which it or, in the case of the Company only, any of its
Significant Subsidiaries or properties is subject or bound, (B) constitute a breach
or violation of, or a default under, its Constituent Documents or (C) require any
consent or approval under any such law, rule, regulation, judgment, decree, order,
governmental permit or license, Material Contract, indenture or instrument.
(g) Company Financial Reports and Regulatory Filings; Material Adverse Effect. In the
case of the Company only:
(1) Since March 1, 2004, the Company has filed with the SEC all material forms,
statements, reports and documents required to be filed by it under the Exchange Act
and the Securities Act. Its Annual Reports on Form 10-K for the fiscal years ended
February 28, 2006 and 2007 and February 29 2008, and all other reports, registration statements,
definitive proxy statements or information statements, as amended, filed by it or
any of its Significant Subsidiaries subsequent to March 1, 2004 under the Securities
Act, or under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, in the form
filed (collectively, its “Regulatory Filings”) with the SEC as of the date filed,
(A) complied in all material respects as to form with the applicable requirements
under the Securities Act or the Exchange Act, as the case may be, and (B) did not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and each of
the consolidated statements of financial position contained in or incorporated by
reference into any such Regulatory Filing (including the related notes and
schedules) fairly presented in all material respects the financial position of it
and its Significant Subsidiaries on a consolidated basis as of the date of such
statement in accordance with GAAP consistently applied during the periods involved,
except in each case as may be noted therein, and subject to normal year-end audit
adjustments and as permitted by SEC Form 10-Q promulgated under the Exchange Act in
the case of unaudited statements.
(2) Since February 28, 2008, except for liabilities (A) permitted or
contemplated by this Agreement or (B) incurred in the ordinary course of
24
business, the Company has not incurred any liabilities of a nature required to
be set forth or reflected in a balance sheet prepared in accordance with GAAP.
(3) Since January 1, 2007, it and its Significant Subsidiaries have conducted
their respective businesses in the ordinary and usual course consistent with past
practice (excluding the incurrence of expenses related to this Agreement and the
Transactions).
(4) As of the date hereof, the total aggregate amount of indebtedness under
capital leases and for borrowed money (which shall include principal, interest and
fees associated therewith) owed by the Company and its Subsidiaries is less than $1
million (which amount shall exclude amounts for indebtedness among the Company and
its Subsidiaries). To the Company’s Knowledge, (i) neither the Company nor any of
its Subsidiaries is in default, and no waiver of default is currently in effect, in
the payment of any principal or interest on any indebtedness of the Company or its
Subsidiaries and (ii) no breach of any term or other event or a condition exists
with respect to any indebtedness of the Company or its Subsidiaries that would
permit one or more persons to cause such indebtedness to become due and payable
before its stated maturity.
(h) Company Litigation. In the case of the Company only, as of the date hereof, there
is no suit, action, investigation or proceeding pending or, to its Knowledge, threatened
against or affecting it or any of its Significant Subsidiaries, nor is there any judgment,
decree, injunction, rule or order of any Governmental Authority or arbitration outstanding
against it or any of its Significant Subsidiaries.
(i) Company Compliance with Laws. In the case of the Company only, it and each of its
Significant Subsidiaries:
(1) conducts its business in compliance with all applicable federal, state,
local and foreign statutes, laws, regulations, ordinances, rules, judgments, orders
or decrees applicable thereto or to the employees conducting such businesses;
(2) has all permits, licenses, authorizations, orders and approvals of, and has
made all material filings, applications and registrations with, all Governmental
Authorities that are required in order to permit them to own or lease their
properties and to conduct their businesses as presently conducted; all such permits,
licenses, certificates of authority, orders and approvals are in full force and
effect and, to its Knowledge, no suspension or cancellation of any of them is
threatened; and
(3) has not received, since January 1, 2005, written notification from any
Governmental Authority (A) asserting that it or any of its Significant Subsidiaries
is not in compliance with any of the statutes, regulations or ordinances which such
Governmental Authority enforces or (B) threatening to revoke any license, franchise,
permit or governmental authorization.
25
(j) Company Material Contracts; Defaults. In the case of the Company only:
(1) Neither it nor any of its Significant Subsidiaries is a party to, bound by
or subject to any agreement, contract, arrangement, commitment or understanding
(whether written or oral) (A) that is a “material contract” within the meaning of
Item 601(b)(10) of the SEC’s Regulation S K; (B) under which a customer has
purchased goods and services, or committed to purchase goods and services, in excess
of $500,000 during the 18-month period ended May 31, 2008; (C) that is with a
significant supplier of products or services to the Company and its Significant
Subsidiaries for resale or distribution to customers; (D) that was not entered into
in the ordinary course of business consistent with past practice and involved, the
purchase by the Company or its Significant Subsidiaries of more than $500,000 during
the 18-month period ended May 31, 2008; (E) that restricts in any material respect
the conduct of business by the Company or any of its Significant Subsidiaries or its
or their ability to compete in any line of business (each, other than to the extent
it would include a Benefit Arrangement, a “Material Contract”).
(2) Neither it nor any of its Significant Subsidiaries is in default under any
Material Contract, and to its Knowledge, there has not occurred any event that, with
the lapse of time or the giving of notice or both, would constitute such a default.
(k) Company Taxes. In the case of the Company only, (1) all Tax Returns that are
required to be filed (taking into account any extensions of time within which to file) by or
with respect to it and its Significant Subsidiaries have been duly and timely filed, (2) all
Taxes shown to be due on the Tax Returns referred to in clause (1) have been paid in full,
(3) all Taxes that it or any of its Significant Subsidiaries is obligated to withhold from
amounts owing to any employee, creditor or third party have been withheld and paid over to
the proper Governmental Authority, to the extent due and payable, and (4) no extensions or
waivers of statutes of limitation have been given by or requested with respect to any of its
U.S. federal income taxes or those of its Significant Subsidiaries. The Company has either
paid or made provision in accordance with GAAP, in the consolidated financial statements
included in the Regulatory Filings filed before the date hereof, for all Taxes of the
Company and its Significant Subsidiaries that accrued on or before the end of the most
recent period covered by its Regulatory Filings filed before the date hereof. Except for
Permitted Liens, to the Company’s Knowledge, no Liens for Taxes exist with respect to any of
its assets or properties or those of its Significant Subsidiaries.
26
(l) Company Employee Benefit Plans. In the case of the Company only:
(1) All of its Benefit Arrangements are Previously Disclosed. True and
complete copies of all material Benefit Arrangements, including, but not limited to,
any trust instruments and insurance contracts forming a part of any Benefit
Arrangements, and all amendments thereto, have been made available to Parent.
(2) All of its Benefit Arrangements are in substantial compliance with their
terms, ERISA, the Code and other applicable laws, including Code Section 409A. Each
of its Benefit Arrangements which is a “U.S. employee pension benefit plan” within
the meaning of Section 3(2) of ERISA (“Pension Plan”), and which is intended to be
qualified under Section 401(a) of the Code, has received a favorable determination
letter or is subject to an opinion letter from the U.S. Internal Revenue Service,
and to its Knowledge there are no circumstances reasonably likely to result in
revocation of any such favorable determination letter or which would result in
material costs under the U.S. Internal Revenue Service’s Employee Plans Compliance
Resolution System. No events have occurred with respect to any Benefit Arrangements
that could result in a material payment or assessment by or against the Company of
any excise Taxes under the Code.
(3) None of it, any of its Significant Subsidiaries or any entity which is
considered one employer with it under Section 4001 of ERISA or Section 414 of the
Code (an “ERISA Affiliate”) has contributed to a “multiemployer plan,” within the
meaning of Section 3(37) of ERISA, a “multiple employer plan” within the meaning of
Section 210(a) of ERISA, any non-U.S. defined benefit plan, or a Pension Plan
subject to Title IV of ERISA or Section 412 of the Code, at any time within the last
six years.
(4) All contributions required to be made under the terms of any of its Benefit
Arrangements have been timely made or have been reflected on its consolidated
financial statements included in its Regulatory Filings. Neither the Company nor
any of its Subsidiaries has any liability in respect of post-retirement health,
medical or life insurance benefits for retired, former or current employees or
directors of the Company or its Subsidiaries except as required to avoid excise Tax
under Section 4980B of the Code.
(5) Except as provided in Section 3.09, neither its execution of this
Agreement, the consummation of the Transactions nor the Company Shareholder Approval
will, either alone or in conjunction with another event (such as termination of
employment), (A) entitle any of its employees or any employees of its Significant
Subsidiaries to severance pay or any increase in severance pay or (B) accelerate the
time of payment or vesting or trigger any payment or funding (through a grantor
trust or otherwise) of compensation or benefits under, increase the amount payable
or trigger any other material obligation pursuant to, any of its Benefit
Arrangements.
27
(6) Since January 1, 2007, the Company has not paid any special or non-routine
bonus or incentive payment to any executive officer. As of the date of this
Agreement, there is no contract, plan or arrangement (written or otherwise) covering
any employee or former employee of the Company or any of its Subsidiaries that,
individually or collectively, would entitle any employee or former employee to any
severance or other payment as a result of the transactions contemplated hereby, or
could give rise to the payment of any amount that would not be deductible pursuant
to the terms of Section 280G or 162(m) of the Code.
(7) There is no pending or, to the Company’s Knowledge, threatened assessment,
complaint, proceeding, or investigation of any kind in any court or government
agency with respect to any Benefit Arrangement (other than routine claims for
benefits), nor, to the Company’s Knowledge, is there any basis for one.
(8) All contributions or premiums required to be paid with respect to workers’
compensation arrangements of the Company and its Subsidiaries have been made or
accrued as a liability on the financial statements.
(m) Takeover Laws and Provisions Applicable to the Company. In the case of the Company
only, (i) it has taken all action required to be taken by it in order to exempt this
Agreement, the Tender and Voting Agreements and the Transactions from, and this Agreement,
the Tender and Voting Agreements and the Transactions are exempt from, the requirements of
any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business
combination” or other anti-takeover laws and regulations of any state, including the
Business Combination Law (collectively, “Takeover Laws”) and (ii) it has taken all action
required to be taken by it in order to make this Agreement, the Tender and Voting Agreements
and the Transactions comply with, and this Agreement and the Transactions do comply with,
the requirements of (1) the Company Rights Agreement and (2) any Articles, Sections or
provisions of its Constituent Documents concerning “business combination,” “fair price,”
“voting requirement,” “constituency requirement” or other related provisions (collectively,
“Takeover Provisions”).
(n) Financial Advisors. In the case of the Company only, none of it, its Significant
Subsidiaries or any of their officers, directors or employees has employed any broker or
finder or incurred any liability for any brokerage fees, commissions or finder’s fees in
connection with the Transactions, except that, in connection with this Agreement, the
Company has retained Xxxxxxx, Xxxxx & Co. as its financial advisor, the arrangements with
which have been disclosed to Parent prior to the date hereof, whose fees and expenses will
not exceed the amounts set forth on Section 5.03(n) of the Disclosure Schedule.
(o) Xxxxxxxx-Xxxxx Act. In the case of the Company only, (i) the management of the
Company has implemented and maintains disclosure controls and procedures (as defined in Rule
13a-15(e) of the Exchange Act) to ensure that material information relating to the Company,
including its consolidated Subsidiaries, is made known to the chief executive officer and
the chief financial officer of the Company by other employees within the Company; (ii) the
Company’s principal executive officer and principal
28
financial officer have disclosed, based on their most recent evaluation of internal
control over financial reporting, to the Company’s auditors and the audit committee of the
Board of Directors (or persons performing the equivalent functions): (A) all significant
deficiencies and material weaknesses within their knowledge in the design or operation of
internal control over financial reporting which are reasonably likely to adversely affect
the Company’s ability to record, process, summarize and report financial information; and
(B) any fraud that involves management or other employees who have a significant role in the
Company’s internal control over financial reporting; (iii) to the Company’s Knowledge, the
certifications provided pursuant to Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act with each
Regulatory Filing of the Company, at the time of filing or submission of such certification,
were accurate; (iv) as of the date hereof, the Company has not identified any material
weaknesses in the design or operation of its internal control over financial reporting
except as disclosed in the Regulatory Filings filed prior to the date hereof; and (v)
neither the Company nor any of its Subsidiaries has outstanding, or has arranged any
outstanding, “extensions of credit” to directors or executive officers of the Company within
the meaning of Section 402 of the Xxxxxxxx-Xxxxx Act (other than advancements of expenses
pursuant to indemnity arrangements).
(p) Company Labor Matters. In the case of the Company only, neither it nor any of its
Significant Subsidiaries is a party to, or is bound by, any collective bargaining agreement,
contract or other agreement or understanding with a labor union or labor organization, nor
to the Knowledge of the Company is the Company or any of its Significant Subsidiaries the
subject of a proceeding before any court or governmental agency asserting that it or any
such Significant Subsidiary has committed an unfair labor practice (within the meaning of
the National Labor Relations Act) or seeking to compel it or such Significant Subsidiary to
bargain with any labor organization as to wages and conditions of employment. In the case
of the Company only, there is no strike or other labor dispute involving it or any of its
Significant Subsidiaries pending or, to the best of its Knowledge, threatened; nor is it
aware, as of the date of this Agreement, of any activity involving it or any of its
Significant Subsidiaries’ employees seeking to certify a collective bargaining unit or
engaging in any other organization activity.
(q) Company Environmental Matters. In the case of the Company only, there are no
proceedings, claims, actions or investigations of any kind pending or, to the Knowledge of
the Company, threatened, in any court, agency or other Governmental Authority or in any
arbitral body, arising under any Environmental Law against the Company or its Subsidiaries;
the Company and its Subsidiaries have conducted their operations in compliance with its
environmental permits and the limitations, restrictions, conditions, standards,
prohibitions, requirements and obligations of applicable Environmental Laws; all permits
required under Environmental Laws have been obtained and are in full force and effect; there
have been no releases of Materials of Environmental Concern or other conditions at any
property owned, or operated by the Company or its Subsidiaries that would require
remediation under Environmental Laws; and, no facts or circumstances exist that would
reasonably be expected to result in any liabilities under any Environmental Law or common
law relating to the operations of the Company or its Subsidiaries as a result of (1) any
violation by the Company of any Environmental Law,
29
or (2) the release, storage, handling, treatment, transportation or disposal of any
Materials of Environmental Concern generated by the Company’s operations.
(r) No Additional Representations. In the case of Parent only, Parent acknowledges
that neither the Company nor any other person has made any representation or warranty,
expressed or implied, as to the accuracy or completeness of any information regarding the
Company furnished or made available to Parent and its representatives except as expressly
set forth in Section 5.03 hereof.
(s) Offer Documents; Schedule 14D-9; Proxy Statement. In the case of the Company only,
and subject to the accuracy of the representations of Parent in Section 5.03(t):
(1) Neither the Schedule 14D-9 nor any of the information supplied by the
Company for inclusion in the Offer Documents will, at the times the Schedule 14D-9,
the Offer Documents or any amendments or supplements thereto are filed with the SEC
or are first published, sent or given to shareholders of the Company, as the case
may be, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(2) In the event a Shareholders’ Meeting is held, neither the proxy statement
to be sent to the shareholders of the Company in connection with such Shareholders’
Meeting nor the information statement to be sent to such shareholders, as
appropriate (such proxy statement or information statement, as amended or
supplemented, being referred to herein as the “Proxy Statement”), shall, at the date
the Proxy Statement (or any amendment or supplement thereto) is first mailed to
shareholders of the Company or at the time of the Shareholders’ Meeting, contain any
statement which, at the time and in light of the circumstances under which it was
made, is false or misleading with respect to any material fact, or which omits to
state any material fact necessary in order to make the statements therein not false
or misleading or necessary to correct any statement in any earlier communication
with respect to the solicitation of proxies for the Shareholders’ Meeting which
shall have become false or misleading.
(3) Notwithstanding the foregoing, the Company makes no representation or
warranty with respect to any information supplied by Parent, Purchaser or any of
Parent’s or Purchaser’s representatives for inclusion in the foregoing documents.
(4) The Schedule 14D-9 and the Proxy Statement, if applicable, shall comply in
all material respects as to form with the requirements of the Exchange Act and the
rules and regulations thereunder.
30
(t) Offer Documents; Proxy Statement. In the case of Parent and Purchaser only, and
subject to the accuracy of the representations of the Company in Section 5.03(s):
(1) Neither the Offer Documents nor any of the information supplied by Parent
or Purchaser for inclusion in the Offer Documents will, at the time the Offer
Documents are filed with the SEC or are first published, sent or given to
shareholders of the Company, as the case may be, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading.
(2) In the event a Shareholders’ Meeting is held, the information supplied by
Parent for inclusion in the Proxy Statement shall not, at the date the Proxy
Statement (or any amendment or supplement thereto) is first mailed to shareholders
of the Company or at the time of the Shareholders’ Meeting, contain any untrue
statement of a material fact, or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not false or misleading, or necessary to
correct any statement in any earlier communication with respect to the solicitation
of proxies for the Shareholders’ Meeting which shall have become false or
misleading.
(3) Notwithstanding the foregoing, Parent and Purchaser make no representation
or warranty with respect to any information supplied by the Company or any of its
representatives for inclusion in any of the foregoing documents or the Offer
Documents. The Offer Documents shall comply in all material respects as to form
with the requirements of the Exchange Act and the rules and regulations thereunder.
(u) Intellectual Property Assets. In the case of the Company only,
(1) Section 5.03(u)(1) of the Disclosure Schedule lists the material worldwide
pending patent applications, issued patents, pending trademark applications,
registered trademarks, pending copyright applications, registered copyrights, and
registered domain names owned by the Company or its Significant Subsidiaries (the
“Intervoice Companies”) (hereinafter the “IP Assets”).
(2) Each of the IP Assets is owned exclusively by one of the Intervoice
Companies. In each case, such IP Assets are free and clear of all Liens. In each
case, copies of executed documents establishing ownership of issued patents and
pending patent applications included in the IP Assets are in the physical possession
of the Intervoice Companies and have been made available to Purchaser.
31
(3) With respect to all patent applications, trademark applications, and
copyright applications of the IP Assets pending with any Governmental Authority, the
Intervoice Companies have conducted the prosecution of all such pending applications
in a manner consistent with the reasonable ongoing business goals and objectives of
the Intervoice Companies. With respect to all patents, trademarks, and copyrights
of the IP Assets issued or registered by any Governmental Authority, all necessary
registration fees, maintenance fees, renewal fees, annuity fees and taxes consistent
with the reasonable ongoing business goals and objectives of the Intervoice
Companies due in connection with such IP Assets have been paid and all necessary
documents and certificates in connection with such IP Assets have been filed with
the relevant patent, trademark, and copyright offices, registrars, or other
authorities in the United States or foreign jurisdictions, as the case may be, for
the purposes of maintaining the registration or application for registration of such
IP Assets. With regard to all applications for domain name registration and all
registered domain names of the IP Assets, all necessary registration and renewal
fees due in connection with such IP Assets have been paid.
(4) Section 5.03(u)(4) of the Disclosure Schedule contains a true and complete
list of all material written licenses to which any of the Intervoice Companies is a
party with respect to any of the IP Assets (true and complete copies of which, or,
if none exist, reasonably complete and accurate written descriptions of which,
together with all amendments and supplements thereto and all waivers of any terms
thereof, have been provided to Purchaser), except licenses and license agreements
entered into in the ordinary course of business. To the Company’s knowledge there
are no material contracts or licenses granting any rights to any third party with
respect to any of the IP Assets.
(5) To the Company’s Knowledge, none of the IP Assets, or any intellectual
property used, sold or offered for sale by the Intervoice Companies infringes or
otherwise violates any third party intellectual property rights.
(v) Opinion of Financial Advisor. In the case of the Company only, prior to the
execution of this Agreement, the Company has received an opinion of Xxxxxxx, Xxxxx & Co. to
the effect that as of the date of this Agreement and based upon and subject to the matters
set forth therein, the consideration to be received by the holders of shares of Company
Common Stock pursuant to the Offer and the Merger is fair to such holders from a financial
point of view.
(w) Compensation Arrangements. In the case of the Company only, on or prior to the
date hereof, the Compensation Committee of the Company Board (the “Compensation Committee”)
has (i) approved all amounts payable to any officer, director or employee of the Company or
any of its Subsidiaries pursuant to each Benefit Arrangement or other arrangement,
understanding or agreement, and each amendment or supplement thereto or modification
thereof, (collectively, the “Compensation Arrangements”) as an “employment compensation,
severance or other employee benefit arrangement” within the meaning of Rule 14d-10(d) under
the Exchange Act and (ii)
32
taken all other action necessary to satisfy the requirements of the nonexclusive safe
harbor with respect to such Compensation Arrangements in accordance to Rule 14d-10(d) under
the Exchange Act (the approvals and actions referred to in clauses (i) and (ii) above, the
“Company Compensation Approvals”); all payments made or to be made and benefits granted or
to be granted pursuant to such Compensation Arrangements (A) were, or will be, paid or
granted as compensation for past services performed, future services to be performed, or
future services to be refrained from being performed, by such officer, director or employee
and (B) were not, and will not, be calculated based on the number of securities tendered or
to be tendered in the Offer by such director, officer or employee. The Company Board has
determined that each of the members of the Compensation Committee are, and the members of
the Compensation Committee are, “independent directors” in accordance with the requirements
of Rule 14(d)-10(d)(2) under the Exchange Act.
(x) Real Property. In the case of the Company only,
(1) Section 5.03(x)(1) of the Disclosure Schedule contains a true and complete
list of all real property leases, ground leases, licenses, tenancies, subleases and
all other occupancy agreements (the “Leases”) to which the Company or any of its
Subsidiaries is a party (including all amendments, modifications, supplements,
renewals, extensions and guarantees related thereto) (the space and real property
subject to such leases, the “Leased Property”) and the Company has made available to
Parent a true and complete copy of each of the Leases. The Company or its Subsidiary
has good and valid title to all its personal property, free and clear of all Liens
(except for Permitted Liens) and has a good and valid title to the leasehold estate
in all Leased Property, free and clear of all Liens (except for Permitted Liens),
sufficient to conduct their business as currently conducted. The Leases are valid
and binding against the Company in accordance with their terms and are in full force
and effect. There is not, under any of the Leases, any existing default or
violation by the Company or any of its Subsidiaries, nor to the Company’s Knowledge,
any existing default or violation by any counterparty to any Lease, nor to the
Company’s Knowledge any event or circumstance which, without notice or lapse of time
or both, would become a default or violation by a party to the Leases or give rise
to a right of termination or cancellation under any of the Leases. Except for any
Permitted Liens, the Company nor any of its Subsidiaries has assigned, transferred,
conveyed, mortgaged, or encumbered any interest in any Leased Property.
(2) The Company has good, valid and indefeasible fee simple title to the real
property identified on Section 5.03(x)(2) of the Disclosure Schedule (the “Owned
Property”), free and clear of all Liens, except for Permitted Liens. There is no
pending, and the Company has not received any written notice of any threatened, and,
to the Company’s Knowledge, there is no contemplated condemnation proceeding
affecting the Owned Property or any part thereof or any pending or threatened sale
or other disposition of the Owned Property or any part thereof in lieu of
condemnation. To the Company’s Knowledge, the uses for which the Owned Property is
zoned do not restrict, or in any material manner
33
impair, the use of the Owned Property for purposes of the businesses of the
Company and the construction on the Owned Property complies in all material respects
with all applicable building and zoning codes, deed restrictions, ordinances and
rules in effect at the time such construction was made. The Company has not received
any written notice from any Governmental Authorities of any material violation of
any applicable zoning law and to the Company’s Knowledge, no such material violation
exists.
(y) Insurance. In the case of the Company only, the Company and its Subsidiaries
maintain, or are entitled to the benefits of, insurance covering their material properties,
operations, personnel and businesses (each, an “Insurance Policy”). Except with respect to
Insurance Policies with respect to Benefit Arrangements, as described in Section 5.03(l),
Section 5.03(y) of the Disclosure Schedule contains a true and complete list of all of the
Insurance Policies and lists the amounts of the last annual premium paid for all current
policies of directors’ and officers’ liability insurance maintained by the Company and its
Subsidiaries; all premiums payable under any Insurance Policy have been paid when due and
the Company and each of its Subsidiaries are in compliance with the terms of each Insurance
Policy.
(z) Foreign Corrupt Practices and International Trade Sanctions. In the case of the
Company only, to the Company’s Knowledge, since March 1, 2005, neither the Company, nor any
of its Subsidiaries, nor any of their respective directors, officers, agents, employees or
any other persons acting on their behalf has, in connection with the operation of their
respective businesses, (i) used any corporate or other funds for unlawful contributions,
payments, gifts or entertainment, or made any unlawful expenditures relating to political
activity to government officials, candidates or members of political parties or
organizations, or established or maintained any unlawful or unrecorded funds in violation of
any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any other similar
applicable foreign, federal or state law, (ii) paid, accepted or received any unlawful
contributions, payments, expenditures or gifts or (iii) violated or operated in
noncompliance with any export restrictions, anti-boycott regulations, embargo regulations or
other applicable domestic or foreign laws.
5.04 Representations and Warranties about Purchaser. Parent and Purchaser hereby jointly and
severally represent and warrant to the Company as follows:
(a) Organization and Standing. Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Texas. It is duly qualified to
do business and is in good standing in all jurisdictions where its ownership or leasing of
property or assets or its conduct of business requires it to be so qualified.
(b) Purchaser Stock. The authorized capital stock of Purchaser consists of 1,000
shares of Purchaser Common Stock. All of the issued and outstanding capital stock of
Purchaser is owned by Parent as its sole shareholder. The outstanding shares of Purchaser
Common Stock have been duly authorized and are validly issued and outstanding, fully paid
and nonassessable, and not subject to preemptive rights (and were not issued in violation of
any preemptive rights).
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(c) Power. Purchaser has the corporate power and authority to carry on its business as
it is now being conducted and to own all its properties and assets, and it has the corporate
power and authority to execute, deliver and perform its obligations under this Agreement and
to consummate the Transactions.
(d) Authority. Purchaser has duly authorized, executed and delivered this Agreement
and the Tender and Voting Agreements, and this Agreement and the Tender and Voting
Agreements and the Transactions have been authorized by all other necessary corporate
actions, including the necessary approval of Parent as the sole shareholder of Purchaser.
This Agreement is Purchaser’s valid and legally binding obligation, enforceable in
accordance with its terms (except as enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general
applicability relating to or affecting creditors’ rights or by general equity principles).
(e) Funds. Purchaser has, or will have prior to the consummation of the Offer and at
the Effective Time, sufficient funds available to satisfy the obligation to pay for Shares
in the Offer and to pay the Merger Consideration in the Merger.
ARTICLE VI
Covenants
6.01 Reasonable Best Efforts.
(a) Subject to the terms and conditions of this Agreement, Parent, Purchaser and the
Company will each use its reasonable best efforts to take, or cause to be taken, in good
faith, all actions, and to do, or cause to be done, all things necessary, proper or
desirable, or advisable under applicable laws, so as to permit consummation of the Offer and
the Merger as promptly as practicable and otherwise to enable consummation of the
Transactions, and each will cooperate fully with, and furnish information to, the other
party to that end. In furtherance and not in limitation of the covenants of the parties
contained in this Section 6.01(a), if any objections are asserted with respect to the
Transactions under any antitrust law, or if any suit is threatened to be instituted, by any
Governmental Authority or any private party challenging any of the Transactions or otherwise
brought under any antitrust law or other applicable law that would otherwise prohibit or
materially impair or materially delay the consummation of the Transactions, each of Parent,
Purchaser and the Company shall use its reasonable best efforts to resolve any such
objections or suits so as to permit consummation of the Transactions as soon as practicable,
and in any event before the Termination Date.
(b) Parent will execute and deliver, or cause to be executed and delivered, by or on
behalf of the Surviving Corporation, at and as of the Effective Time, such instruments and
other agreements as may be required for the due assumption of the Company’s outstanding debt
and guarantees to the extent such may be required by the terms of such debt and guarantees.
35
6.02 Shareholder Approvals.
(a) If required by applicable law in order to consummate the Merger, the Company,
acting through the Company Board, shall, in accordance with applicable law and the Company’s
Articles of Incorporation and By-laws, duly call, give notice of, convene and hold an annual
or special meeting of its shareholders as promptly as practicable following consummation of
the Offer for the purpose of considering and taking action on this Agreement and the Merger
(the “Shareholders’ Meeting”). At the Shareholders’ Meeting, Parent and Purchaser shall
cause all Shares then owned by them and their subsidiaries to be voted in favor of the
adoption of this Agreement.
(b) Notwithstanding the foregoing, in the event that Purchaser shall acquire shares of
Company Common Stock representing at least 90% of the voting power of the then outstanding
shares of the Company Common Stock pursuant to the Offer, exercise of the Top-Up Option or
otherwise, the parties shall take all necessary and appropriate action to cause the Merger
to become effective, in accordance with Section 5.16 of the TBCA, as promptly as reasonably
practicable after such acquisition, without a meeting of the shareholders of the Company.
6.03 Proxy Statement. If approval of the Company’s shareholders is required by applicable law
to consummate the Merger, promptly following consummation of the Offer, the Company shall file the
Proxy Statement with the SEC under the Exchange Act, and shall use its reasonable best efforts to
have the Proxy Statement cleared by the SEC promptly. Each of the Company, Parent and Purchaser
agrees to use its reasonable best efforts, after consultation with the other parties hereto, to
respond promptly to all such comments of and requests by the SEC and to cause the Proxy Statement
and all required amendments and supplements thereto to be mailed to the holders of Shares entitled
to vote at the Shareholders’ Meeting at the earliest practicable time; provided further, that, in
the event the Top-Up Option has not been exercised and there is a subsequent offering period as
contemplated by Section 2.01(c), the Company shall initiate the actions contemplated hereby no
later than the fifth Business Day after the first day of the first such subsequent offering period
if Section 6.02(b) has not theretofore become applicable.
6.04 Press Releases. Parent and the Company will consult with each other before issuing any
press release with respect to the Offer, the Merger or this Agreement and will not issue any such
press release without the prior written consent of the other party, which will not be unreasonably
withheld or delayed; provided that a party may, without the prior consent of the other party (but
after prior consultation, to the extent practicable in the circumstances), issue any such press
release as may be required by applicable law, securities exchange or automated quotation system
rules. Parent and the Company will cooperate to develop all public communications and make
appropriate members of management available at presentations related to the Transactions as
reasonably requested by the other party.
6.05 Access; Information.
(a) Company agrees that upon reasonable notice and subject to applicable laws relating
to the exchange of information, it will (and will cause its Subsidiaries to)
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afford Parent, and Parent’s Representatives and accountants, such access during normal
business hours throughout the period before the Effective Time to the books, records
(including, without limitation, Tax Returns and work papers of independent auditors) and
properties and to such other information as Parent may reasonably request; provided,
however, that such access shall not unreasonably disrupt the operations of the Company. All
requests for such access shall be made to such representatives of the Company as the Company
shall designate, who shall be solely responsible for coordinating all such requests and all
access permitted hereunder. Without limiting the generality of the foregoing, the Company
shall permit and provide access to Parent to each of the Dallas, Texas, Mountainview,
California, Manchester, England and Orlando, Florida facilities, such that the Parent can
conduct a physical inventory of the Company’s assets located at such facility. Neither
Parent nor any of Parent’s Representatives shall contact any of the employees, customers or
suppliers of the Company in connection with the Transactions, whether in person or by
telephone, mail or other means of communication, without the specific prior written
authorization of such representatives of the Company as the Company may designate, which
authorization with not be unreasonably withheld, delayed or conditioned. The Company will
not be required to afford access or disclose information that would jeopardize
attorney-client privilege, contravene any binding agreement with any third party or violate
any law or regulation. The parties will make reasonable appropriate substitute arrangements
in circumstances where the previous sentence applies.
(b) Each party will hold any information provided in connection with this Agreement or
the Transactions confidential in accordance with the Confidentiality Agreement.
6.06 No Solicitation.
(a) The Company shall not, directly or indirectly, through any of its officers or
directors or any employee, representative or agent of the Company or any of its Subsidiaries
(including any investment banker, attorney or accountant retained by it or any of its
Subsidiaries) acting, directly or indirectly, at the direction of any officer or director of
the Company, (i) initiate, solicit, or knowingly encourage inquiries or proposals with
respect to an Acquisition Proposal other than from Parent, (ii) engage in any discussions or
negotiations concerning, or provide any confidential information or data to any third party
in connection with an Acquisition Proposal (except to notify such person as to the existence
of the provisions of this Section 6.06), or knowingly take any other action with the purpose
or intention of facilitating any other inquiries or the making of any proposal that
constitutes, or that reasonably may be expected to lead to, any Acquisition Proposal, or
(iii) except as permitted by Section 6.06(f) below, enter into any agreement (other than a
confidentiality agreement permitted by (C) below) with respect to any Acquisition Proposal
or approve or resolve to approve any Acquisition Proposal. Notwithstanding the foregoing,
prior to the Acceptance Date, the Company may, in response to an unsolicited Acquisition
Proposal received by the Company which did not result from a breach of this Section 6.06,
furnish information to, or enter into discussions or negotiations with, or waive any
standstill with, any person that has made, an unsolicited bona fide written Acquisition
Proposal if, and only to the extent that (A) such
37
Acquisition Proposal constitutes a Superior Proposal or the Company Board, after
consulting with the Company’s outside legal and financial advisors, determines in good faith
that such Acquisition Proposal, after furnishing such information and entering into such
discussions or negotiations, could reasonably be expected to result in a Superior Proposal,
(B) the Company and its Subsidiaries are otherwise in compliance with this Section 6.06
(including, prior to furnishing such information to, or entering into discussions or
negotiations with, such person, by providing written notice to Parent to the effect that it
is furnishing information to, or entering into discussions or negotiations with, such
person), (C) prior to furnishing such information, the Company receives from such person an
executed confidentiality agreement with terms substantially similar to and no less favorable
to the Company than those contained in the Confidentiality Agreement; provided, however,
that the Company may enter into discussions or negotiations solely with respect to entering
into such confidentiality agreement without breaching this Section 6.06, and (D) the Company
keeps Parent informed, on a reasonably current basis, of the status of any such discussions
or negotiations as provided above.
(b) The Company shall promptly (and, in any event, within two Business Days) notify
Parent of the existence of any proposal, discussion, negotiation or inquiry received by the
Company with respect to any Acquisition Proposal, the material terms and conditions of any
proposal, discussion, negotiation or inquiry that it may receive and the identity of the
person making such proposal or inquiry, and any modification of or amendment thereto, and
will keep Parent reasonably apprised of any related developments, discussions, and
negotiations.
(c) The Company shall immediately cease and cause to be terminated any existing
discussions or negotiations with any persons (other than Parent) conducted heretofore with
respect to any Acquisition Proposal.
(d) Nothing contained in this Section 6.06 shall prohibit the Company or the Company
Board from (i) taking and disclosing to its shareholders a position contemplated by Rule
14e-2(a) promulgated under the Exchange Act or (ii) making any disclosure to the Company’s
shareholders if, in the good faith judgment of the Company Board, after consultation with
outside counsel, failure to make such disclosure would be inconsistent with applicable law.
(e) Except as set forth in this Section 6.06(e), neither the Company Board nor any
committee thereof shall (i) approve or recommend, or propose to approve or recommend, any
Acquisition Proposal, (ii) cause or permit the Company to enter into any letter of intent,
agreement in principle, acquisition agreement or similar agreement with respect to any
Acquisition Proposal or (iii) withdraw or modify in a manner adverse to Parent or Purchaser,
or publicly propose to withdraw or modify in a manner adverse to Parent or Purchaser, the
Company Board Recommendation. Notwithstanding the foregoing provisions of this Section
6.06(e), the Company Board may, at any time, withdraw, modify or amend the Company Board
Recommendation (a “Company Board Change of Recommendation”) if the Company Board has
concluded in good faith, after consultation with the Company’s outside legal advisors, that
the failure of the Company Board to effect a Company Board Change of Recommendation would be
reasonably
38
likely to be inconsistent with the directors’ exercise of their fiduciary obligations
to the Company’s shareholders under applicable law.
(f) Notwithstanding anything in this Section 6.06 to the contrary, at any time prior to
the Acceptance Date, the Company Board (or any duly constituted committee of the Company
Board) may, in response to a Superior Proposal that did not result from a breach of this
Section 6.06, cause the Company to terminate this Agreement pursuant to Section 8.01(f) and
concurrently with such termination enter into a definitive agreement providing for the
transactions contemplated by such Superior Proposal; provided, however, that the Company
shall not terminate this Agreement pursuant to Section 8.01(f), and any purported
termination pursuant to Section 8.01(f) shall be void and of no force or effect, unless, the
Company shall have complied with all the provisions of this Section 6.06, including the
notification provisions in this Section 6.06(f), and with all applicable requirements of
Section 8.03 (including the payment of the Termination Fee prior to or concurrently with
such termination) in connection with such Superior Proposal; and provided further, however,
that the Company shall not exercise its right to terminate this Agreement pursuant to
Section 8.01(f): (1) until after the fifth Business Day following actual receipt by Parent
of written notice from the Company advising Parent that the Company has received a Superior
Proposal, specifying the material terms and conditions of the Superior Proposal and
attaching the most current versions of the definitive agreement, all exhibits and other
attachments thereto and agreements (such as stockholder agreements) ancillary thereto to
effect such Superior Proposal, and identifying the Person making such Superior Proposal (a
“Notice of Superior Proposal”) and stating that the Company Board intends to cause the
Company to exercise its right to terminate this Agreement pursuant to Section 8.01(f) (it
being understood and agreed that, prior to any termination pursuant to Section 8.01(f)
taking effect, any amendment to the price or any other material term of a Superior Proposal
(such amended Superior Proposal, a “Modified Superior Proposal”) shall require a new Notice
of Superior Proposal and a new five Business Day period with respect to such Modified
Superior Proposal) and (2) unless either (A) on or before the expiration of the five
Business Day period following the actual receipt by Parent of any Notice of Superior
Proposal, Parent does not make such adjustments in the terms and conditions of this
Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal (a
“Matching Agreement”) in response to such Superior Proposal or (B) following receipt of a
Matching Agreement within the five Business Day period, the Company Board (or any duly
constituted committee thereof) concludes in good faith, after consultation with the
Company’s outside legal advisors and after taking into consideration the Matching Agreement,
that the Superior Proposal to which the Notice of Superior Proposal relates continues to be
a Superior Proposal.
6.07 Takeover Laws and Provisions. No party will take any action that would cause the
Transactions to be subject to requirements imposed by any Takeover Law and each of them will take
all necessary steps within its control to exempt (or ensure the continued exemption of) such
Transactions from, or if necessary challenge the validity or applicability of, any applicable
Takeover Law, as now or hereafter in effect. No party will take any action that would cause the
Transactions not to comply with any Takeover Provisions and each of them will take all necessary
steps within its control to make such Transactions comply with (or continue to comply
39
with) the Takeover Provisions. No party will take any action that would cause the
Transactions not to comply with the Company Rights Agreement and each of them will take all
necessary steps within its control to make such Transactions comply with (or continue to comply
with) the Company Rights Agreement. Except as provided above with respect to the Transactions or in
order to enter into a transaction pursuant to and in accordance with the terms and conditions of
Section 6.06(f) that constitutes a Superior Proposal, the Company Board will not (i) amend the
Company Rights Agreement, (ii) redeem the Company Rights, (iii) take any other action with respect
to, or make any determination under, the Company Rights Agreement or (iv) approve an Acquisition
Proposal for purposes of the Takeover Laws or the Takeover Provisions.
6.08 Regulatory Applications.
(a) Parent and the Company and their respective Subsidiaries will cooperate and use all
reasonable best efforts to prepare as promptly as possible all documentation, to effect all
filings and to obtain all material permits, consents, approvals and authorizations of all
third parties and Governmental Authorities necessary to consummate the Transactions (the
“Requisite Approvals”) as promptly as practicable, and will make all necessary filings in
respect of those Requisite Approvals as soon as practicable. Each of Parent and the Company
will have the right to review in advance, and to the extent practicable each will consult
with the other, in each case subject to applicable laws relating to the exchange of
information, with respect to all material written information submitted to any third party
or any Governmental Authority in connection with the Requisite Approvals. In exercising the
foregoing right, each of the parties will act reasonably and as promptly as practicable.
Each party agrees that it will consult with the other party with respect to obtaining all
Requisite Approvals and each party will keep the other party apprised of the status of
material matters relating to completion of the Transactions.
(b) Parent and the Company will, upon request, furnish the other party with all
information concerning itself, its Subsidiaries, directors, officers and shareholders and
such other matters as may be reasonably necessary or advisable in connection with any
filing, notice or application made by or on behalf of such other party or any of its
Subsidiaries with or to any third party or Governmental Authority in connection with the
Transactions and to the extent permitted by the applicable Governmental Authority or any
person objecting to the Transactions, give the other party the opportunity to attend and
participate in any meetings and conferences with such Governmental Authority or person
objecting to the Transactions.
6.09 Indemnification.
(a) The indemnification provisions of the Constituent Documents of the Surviving
Corporation as in effect at the Effective Time shall not be amended, repealed or otherwise
modified for a period of six years from the Effective Time in any manner that would
adversely affect the rights thereunder of individuals who at the Effective Time were
directors, officers or employees of the Company. Parent shall assume, be jointly and
severally liable for, and honor, guarantee and stand surety for, and shall cause the
40
Surviving Corporation to honor, in accordance with their respective terms, each of the
covenants contained in this Section 6.09 without limit as to time.
(b) Without limiting Section 6.09(a), following the Effective Time, Parent and the
Surviving Corporation will indemnify, defend and hold harmless the present and former
directors, officers and employees of the Company and its Subsidiaries (each, an “Indemnified
Party”) against all costs or expenses (including reasonable attorneys’ fees and costs of
investigation), judgments, fines, losses, claims, damages or liabilities as incurred, in
connection with any claim, action, suit, proceeding or investigation, whether civil,
criminal, administrative or investigative, arising out of actions or omissions before, at or
after the Effective Time (including as to, or arising out of or pertaining to, the
Transactions), to the fullest extent permitted by applicable law. Parent shall pay all
costs and expenses in connection with such indemnification promptly as statements therefor
are received. At and as of the Effective Time, Parent shall cause the By-laws of the
Surviving Corporation to conform with the Constituent Documents of the Company and with its
obligations under this Section 6.09.
(c) For a period of six years following the Effective Time, Parent will cause to be
maintained in effect director’s and officer’s liability insurance that serves to reimburse
the present and former officers and directors (determined as of the Effective Time) of the
Company or any of their respective Subsidiaries (as opposed to reimbursing the Company or
such Subsidiary) with respect to claims against such directors and officers arising from
facts or events occurring before, at or after the Effective Time (including as to, arising
out of or pertaining to, the Transactions), which insurance will contain at least the same
coverage and amounts of coverage and will contain terms and conditions no less advantageous
to the Indemnified Party than those provided in the director’s and officer’s liability
insurance currently provided by the Company; provided, that officers and directors of the
Company or any Subsidiary may be required to make application and provide customary
representations and warranties to Parent’s insurance carrier for the purpose of obtaining
insurance required to be provided by Parent pursuant to this Section 6.09(c).
(d) Any Indemnified Party wishing to claim indemnification under Section 6.09(a), upon
learning of any claim, action, suit, proceeding or investigation described above, will
promptly notify Parent; provided that failure so to notify will not affect the obligations
of Parent under Section 6.09(a) unless and to the extent that Parent is actually and
materially prejudiced as a consequence.
(e) If Parent or any of its successors or assigns (1) consolidates with or merges into
any other entity and is not the continuing or surviving entity of such consolidation or
merger or (2) transfers all or substantially all of its assets to any other entity, then and
in each case, Parent will, as a condition precedent to the consummation of any such
transaction, cause proper provision to be made so that the successors and assigns of Parent
will, by specificity, assume the obligations set forth in this Section 6.09.
41
(f) The provisions of this Section 6.09 shall survive the Effective Time and are
intended to be for the benefit of, and will be enforceable by, each Indemnified Party and
his or her heirs and legal representatives.
(g) Parent shall pay all reasonable expenses, including reasonable attorneys’ fees and
costs of investigation, that may be incurred by any Indemnified Party in enforcing all
obligations provided in this Section 6.09.
6.10 Employee Matters.
(a) From the Effective Time until December 31, 2008, Parent shall provide, or cause to
be provided, the employees of the Company and its Subsidiaries as of the Effective Time (the
“Covered Employees”) with employee benefits and compensation plans, programs and
arrangements (excluding annual equity grants) substantially comparable, in the aggregate, to
those provided by the Company or its Subsidiaries, as the case may be, to such Covered
Employees immediately prior to the Effective Time.
(b) From and after the Effective Time, Parent shall (1) provide all Covered Employees
with service credit for purposes of eligibility to participate, vesting and benefit accruals
(other than benefit accruals under a pension plan) under any employee benefit or
compensation plan, program or arrangement adopted, maintained or contributed to by Parent or
any of its Subsidiaries in which Covered Employees are eligible to participate, for all
periods of employment with the Company or any of its Subsidiaries (or their predecessor
entities) prior to the Effective Time to the extent credited by the Company for purposes of
a comparable plan (provided that there will be no duplication of benefits) and (2) with
respect to any self-insured welfare benefit plans of Parent or any of its Subsidiaries,
cause, and with respect to all other welfare benefit plans, use commercially reasonable
efforts to cause, any pre-existing conditions, limitations, eligibility waiting periods or
required physical examinations to be waived with respect to the Covered Employees and their
eligible dependents to the extent waived under the corresponding plan (for a comparable
level of coverage) in which the applicable Covered Employee participated immediately prior
to the Effective Time. If the Company’s medical, vision and/or dental benefit plans for
Covered Employees are terminated prior to the end of a plan year, Covered Employees and
their dependents who are then participating in a deductible-based medical, vision and/or
dental plan sponsored by the Company will be given credit for deductibles and eligible
out-of-pocket expenses incurred toward deductibles and out-of-pocket maximums during the
portion of the plan year preceding the termination date (or transfer date) in a comparable
deductible-based medical and/or dental plan of Parent or any of its Subsidiaries for the
corresponding Parent benefit plan year but only if such Parent benefit plan year covers the
same twelve month period as the plan year of the corresponding Company benefit plan covers.
(c) Parent and the Company shall honor, or cause to be honored, in accordance with
their terms, all vested or accrued benefit obligations to, and contractual rights of,
Covered Employees of the Company and its Subsidiaries, including any benefits or rights
arising as a result of the Transaction or Merger (either alone or in combination with any
other event).
42
(d) The Company has established a bonus plan for the fiscal year ending February 28,
2009 (the “2009 Bonus Plan”). From the period beginning on the Effective Time and ending on
February 28, 2009 Parent shall cause the Company to maintain the 2009 Bonus Plan.
(e) No provision in this Section 6.10 shall (2) create any third-party beneficiary or
other rights in any employee or former employee (including any beneficiary or dependent
thereof) of the Company, its Subsidiaries or any other Person other than the parties hereto
and their respective successors and permitted assigns, (2) constitute or create an
employment agreement or (3) constitute or be deemed to constitute an amendment to any
employee benefit plan sponsored or maintained by the Parent, the Company or any Subsidiary.
(f) Neither the Company’s Board of Directors nor the Compensation Committee shall
withdraw, nor permit the withdrawal of, the Company Compensation Approvals.
6.11 Notification of Certain Matters. Parent and the Company will each give prompt notice to
the other of any fact, event or circumstance known to it that would cause or constitute a breach of
any of its representations, warranties, covenants or agreements contained herein that would be
reasonably likely to cause a condition in Article VII not to be capable of being satisfied by the
Termination Date.
6.12 Board of Directors; Section 14(f).
(a) Subject to applicable law, effective upon the purchase by Purchaser of Shares
pursuant to the Offer (the “Appointment Time”), a number of Purchaser’s designees shall be
elected to the Company Board as set forth in this Section 6.12. Purchaser shall be entitled
to designate at least up to such number of directors, rounded up to the next whole number,
on the Company Board as shall give Purchaser representation on the Company Board equal to
the product of the total number of directors on the Company Board (giving effect to the
directors elected pursuant to this sentence) multiplied by the percentage that the aggregate
number of votes represented by Shares beneficially owned by Purchaser or any affiliate of
Purchaser following such purchases bears to the total number of votes represented by Shares
then outstanding, and the Company shall, at such time, promptly take all actions necessary
to cause Purchaser’s designees to be elected as directors of the Company including securing
the resignations of incumbent directors (except as set forth in the last sentence of this
subsection (a)). At such time, the persons designated by Purchaser will, as nearly as
practicable, constitute at least the same percentage as persons designated by Purchaser
shall constitute of the Company Board of (1) each committee of the Board, (2) each board of
directors of each Subsidiary, and (3) each committee of each such board, in each case only
to the extent permitted by applicable law. Notwithstanding the foregoing, until the
Effective Time, the Company shall use its reasonable best efforts to ensure that (x) at
least a majority of the Company Board and each committee of the Company Board and such
boards and committees of the Subsidiaries, as of the date hereof, who are not employees of
the Company shall remain members of the Company Board and of such boards and
43
committees and (y) a majority of the Company Board shall be independent as required by
the relevant rules of the NASDAQ Stock Market, Inc.
(b) Subject to applicable law, the Company shall promptly take all actions required
pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder to
fulfill its obligations under this Section 6.12, and shall include in the Schedule 14D-9
such information with respect to the Company and its officers and directors as is required
under Section 14(f) and Rule 14f-1 to fulfill such obligations. Parent or Purchaser shall
supply to the Company, and be solely responsible for, any information with respect to either
of them and their nominees, officers, directors and affiliates required by such Section
14(f) and Rule 14f-1.
(c) Following the election of designees of Purchaser pursuant to this Section 6.12,
prior to the Effective Time, any amendment of this Agreement or the Articles of
Incorporation or By-laws of the Company, any termination of this Agreement by the Company,
any extension by the Company of the time for the performance of any of the obligations or
other acts of Parent or Purchaser, any waiver of any of the Company’s rights hereunder, or
any action that would prevent or materially delay the consummation of the Merger, shall
require the concurrence of a majority of the directors of the Company then in office who
neither were designated by Purchaser nor are employees of the Company or any subsidiary of
the Company.
ARTICLE VII
Conditions to the Merger
7.01 Conditions to Each Party’s Obligation to Effect the Merger. The respective obligation of
each party to consummate the Merger is subject to the fulfillment or written waiver by the parties
before the Effective Time of each of the following conditions:
(a) Shareholder Approval. If and to the extent required by the TBCA, this Agreement,
the Merger and the other Transactions shall have been approved and adopted by the
affirmative vote of holders of at least two-thirds of the outstanding Shares;
(b) No Order. No Governmental Authority shall have enacted, issued, promulgated,
enforced or entered any law, rule, regulation, injunction, order, decree or ruling (whether
temporary, preliminary or permanent) which is then in effect and has the effect of making
the acquisition of Shares by Parent or Purchaser or any affiliate of either of them illegal
or otherwise restricting, preventing or prohibiting consummation of the Transactions; and
(c) Purchase of Shares. Purchaser shall have accepted for payment and paid for Shares
pursuant to the Offer; provided, however, that this condition shall be deemed to be
satisfied with respect to the obligation of Parent and Purchaser to effect the Merger if
Purchaser fails to accept for payment or pay for the Shares pursuant to the Offer in
violation of the terms of the Offer or of this Agreement.
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ARTICLE VIII
Termination
8.01 Termination. This Agreement may be terminated at any time prior to the Effective Time
and the Transactions may be abandoned for any reason provided in paragraphs (a) through (h) below;
provided, that if any Shares are accepted for payment pursuant to the Offer, neither Parent nor
Purchaser may terminate this Agreement or abandon the Merger except pursuant to paragraphs (a) or
(b) below.
(a) By mutual written consent of each of Parent and the Company, notwithstanding any
requisite approval and adoption of this Agreement by the shareholders of the Company.
(b) By either Parent or the Company if any Governmental Authority shall have enacted,
issued, promulgated, enforced or entered any injunction, order, decree or ruling (whether
temporary, preliminary or permanent) which has become final and nonappealable and has the
effect of making consummation of the Offer or the Merger illegal or otherwise preventing or
prohibiting consummation of the Offer or the Merger; provided that the party seeking to
terminate this Agreement shall have used its reasonable best efforts to remove or lift such
injunction, order, decree or ruling.
(c) By Parent if there shall have been (i) a willful and material breach of any of the
covenants and agreements set forth in Section 6.06 hereof or (ii) a material breach of any
of the covenants or agreements (other than those identified in clause (i) above) or any of
the representations or warranties set forth in this Agreement on the part of the Company
such that, with respect to this clause (ii), any of the events set
forth in subclauses (a) —
(d) of clause (iv) of Annex A would have occurred, which breach is not cured within 15 days
following written notice to the Company, or which breach, by its nature or timing, cannot be
cured prior to the consummation of the Offer.
(d) By the Company if Parent or Purchaser fails to commence the Offer as provided in
Section 2.01(a).
(e) By Parent or the Company if (i) the Offer expires pursuant to its terms without any
Shares being purchased thereunder or (ii) Parent or Purchaser shall not have accepted for
payment and paid for Shares pursuant to the Offer in accordance with the terms hereof and
thereof on or before December 31, 2008 (the “Termination Date”), provided, however, that the
right to terminate this Agreement under this Section 8.01(e) shall not be available to any
party to the extent that such party’s failure to comply with any provision of this
Agreement, including without limitation Section 6.01, has resulted in the failure of any of
the conditions set forth on Annex A hereto.
(f) By the Company, at any time prior to the Acceptance Date (and in no event after the
Acceptance Date), in order to enter into a transaction, pursuant to and in accordance with
the terms and conditions of Section 6.06(f), that constitutes a Superior Proposal.
45
(g) by Parent, if (i) the Company Board shall have withdrawn or modified the Company
Board Recommendation in any manner adverse to Parent, (ii) the Company shall have entered
into any agreement with respect to any Acquisition Proposal, or (iii) the Company Board
shall have resolved to do any of the foregoing.
(h) By the Company if there shall have been a material breach of any of the covenants
or agreements or any of the representations or warranties set forth in this Agreement on the
part of Purchaser or Parent, which breach would prevent Parent or the Purchaser from
performing its obligations under this Agreement and which is not cured within 15 days
following written notice to Parent, or which breach, by its nature or timing, cannot be
cured prior to the consummation of the Offer.
8.02 Effect of Termination. In the event of the termination of this Agreement pursuant to
Section 8.01, this Agreement shall forthwith become void and there shall be no liability on the
part of any party hereto or any of its affiliates, directors, officers or shareholders except that
(i) the Company or Parent may have liability or obligations as set forth in Section 8.03 hereof and
(ii) if this Agreement is terminated because of a breach of this Agreement by Parent or because one
or more of the conditions to the Company’s obligations under this Agreement is not satisfied as a
result of Parent’s failure to comply with its obligations under this Agreement, the Company’s right
to pursue all legal remedies will survive such termination unimpaired. Notwithstanding the
foregoing, nothing herein shall relieve the Company or Parent from liability for any willful breach
hereof or willful misrepresentation herein.
8.03 Termination Fee.
(a) In the event that (i) the Company shall terminate this Agreement pursuant to
Section 8.01(f), (ii) Parent shall terminate this Agreement pursuant to Section 8.01(c)(i)
or (g), or (iii) Parent or the Company shall terminate this Agreement pursuant to Section
8.01(e) at any time during which this Agreement was terminable by Parent pursuant to Section
8.01 (c)(i) or (g), the Company shall pay to the Parent, by wire transfer of immediately
available funds, $14,500,000 in cash (the “Termination Fee”).
(b) In the event that (i) Parent or the Company shall terminate this Agreement pursuant
to Section 8.01(b) (other than an injunction, order, decree or ruling based on or related to
any applicable antitrust or competition law or regulation), (c)(ii) or (e), (ii) there shall
have been publicly disclosed, directly or indirectly, by the Company or the proponent
thereof, at or prior to the time of such termination a bona fide Acquisition Proposal with
respect to the Company and (iii) a definitive agreement or letter of intent is entered into
by the Company with respect to an Acquisition Proposal within twelve months of such
termination of this Agreement or an Acquisition Proposal otherwise is consummated within
twelve months of such termination of this Agreement, the Company shall pay the Termination
Fee to Parent.
(c) In the event that a Termination Fee is payable to Parent, the Company shall pay the
Termination Fee to Parent (i) if this Agreement is terminated pursuant to Section 8.03(a) on
the date of termination (it being understood that no termination by the Company shall be
effective until the Termination Fee has been paid by the Company) and
46
(ii) if this Agreement is terminated pursuant to Section 8.03(b), at the time of
consummation of the Acquisition Proposal.
(d) In the event that the Company shall fail to pay the Termination Fee, required to be
paid pursuant to this Section 8.03 when due, such fee shall accrue interest for the
period commencing on the date such fee became past due, at a rate equal to the then-current
prime lending rate as published in the Wall Street Journal. In addition, if the Company
shall fail to pay such fee when due, then the Company shall also pay to the other party all
of the other party’s costs and expenses (including attorneys’ fees and expenses) in
connection with efforts to collect such fee and/or expenses.
(e) The parties acknowledge that the Termination Fee and this Section 8.03 are an
integral part of the Offer and the Merger and the other transactions contemplated by this
Agreement and that, without these agreements, the parties would not enter into this
Agreement.
ARTICLE IX
Miscellaneous
Miscellaneous
9.01 Survival. The representations, warranties, agreements and covenants contained in this
Agreement will not survive the Effective Time (other than Sections 3.04, 3.05, 3.06, 3.07, 3.08,
3.09, 3.10, 6.09 and 6.10 and this Article IX).
9.02 Waiver; Amendment. Subject to the provisions of Section 6.12(c), at any time prior to
the Effective Time, any provision of this Agreement may be (a) waived by the party benefited by the
provision, but only in writing, or (b) amended or modified at any time, but only by a written
agreement executed in the same manner as this Agreement, except to the extent that any such
amendment would violate applicable law or require submission or resubmission of this Agreement or
the Plan of Merger contained herein to the shareholders of the Company.
9.03 Counterparts. This Agreement may be executed in one or more counterparts, each of which
will be deemed to constitute an original.
9.04 Governing Law; Jurisdiction; Venue. This Agreement and the agreements, instruments and
documents contemplated hereby and all disputes between the parties under or relating to this
Agreement or the facts and circumstances leading to its execution, whether in contract, tort or
otherwise shall be governed by and construed in accordance with the laws of the State of Delaware
(other than with respect to matters relating to fiduciary duties of the Company Board, the Merger,
the TBCA, the TBOC and any matters mandatorily governed by Texas law, with respect to which Texas
law shall apply) without giving effect to conflicts of laws principles that would result in the
application of the law of any other state. The Delaware Court of Chancery sitting in Wilmington,
Delaware (and if the Delaware Court of Chancery shall be unavailable, any Delaware state court and
the Federal court of the United States of America sitting in the State of Delaware) will have
exclusive jurisdiction over any and all disputes between the parties hereto, whether in law or
equity, based upon, arising out of or relating to this Agreement and the agreements, instruments
and documents contemplated hereby or the facts and circumstances leading to its execution, whether
in contract, tort or otherwise. Each of the parties
47
irrevocably consents to and agrees to submit to the exclusive jurisdiction of such courts,
agrees that process may be served upon them in any manner authorized by the laws of the State of
Delaware, and hereby waives, and agrees not to assert in any such dispute, to the fullest extent
permitted by applicable law, any claim that (i) such party is not personally subject to the
jurisdiction of such courts, (ii) such party and such party’s property is immune from any legal
process issued by such courts or (iii) any litigation commenced in such courts is brought in an
inconvenient forum.
9.05 Notices. All notices, requests and other communications given or made under this
Agreement must be in writing and will be deemed given when personally delivered, facsimile
transmitted (with confirmation) or mailed by registered or certified mail (return receipt
requested) to the persons and addresses set forth below or such other place as such party may
specify by notice.
If to the Company, to:
Intervoice, Inc.
00000 Xxxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
00000 Xxxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
With a copy to:
Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxx
Xxxxxxxxx & Xxxxxxxx L.L.P.
0000 Xxxx Xxx., Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Facsimile: (000) 000-0000
Xxxxx X. Xxxxxxx
Xxxxxxxxx & Xxxxxxxx L.L.P.
0000 Xxxx Xxx., Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Facsimile: (000) 000-0000
If to Parent or Purchaser, to:
Convergys Corporation
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Senior Vice President,
General Counsel and Corporate Secretary
Xxxxx X. X’Xxxx, Senior Attorney — M&A
Facsimile: (000) 000-0000
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Senior Vice President,
General Counsel and Corporate Secretary
Xxxxx X. X’Xxxx, Senior Attorney — M&A
Facsimile: (000) 000-0000
48
With copies to.
Xxxxxxxxxxx X. Xxxxxx
Xxxxx Day
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
Xxxxx Day
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
9.06 Entire Understanding; No Third Party Beneficiaries. This Agreement represents the entire
understanding of Parent and the Company regarding the Transactions and supersedes any and all other
oral or written Agreements previously made or purported to be made, other than the Confidentiality
Agreement and the Tender and Voting Agreements. Other than those set forth in the Tender and
Voting Agreements, no representation, warranty, inducement, promise, understanding or condition not
set forth in this Agreement has been made or relied on by any party in entering into this
Agreement. Except for Article III, and Section 6.09, which is intended to benefit the Indemnified
Parties, nothing expressed or implied in this Agreement (including Section 6.10) is intended to
confer any rights, remedies, obligations or liabilities upon any person other than Parent and the
Company.
9.07 Severability. If any provision of this Agreement or the application thereof to any
person or circumstance is determined by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions, or the application of such provision to persons or
circumstances other than those as to which it has been held invalid or unenforceable, will remain
in full force and effect and will in no way be affected, impaired or invalidated thereby, so long
as the economic or legal substance of the Transactions is not affected in any manner materially
adverse to any party. Upon any such determination, the parties will negotiate in good faith in an
effort to agree upon a suitable and equitable substitute provision to effect the original intent of
the parties.
9.08 Assignment; Successors. No party may assign either this Agreement or any of its rights
or interests, or delegate any of its duties hereunder, in whole or in part, without the prior
written consent of the other parties. Any attempt to make any such assignment without such consent
shall be null and void. Subject to the preceding sentences, this Agreement will be binding upon,
inure to the benefit of and be enforceable by, the parties and their respective successors and
permitted assigns.
9.09 Expenses. Except as otherwise specifically provided herein, all costs and expenses
incurred in connection with this Agreement and the Transactions shall be paid by the party
incurring such expenses, whether or not the Offer or the Merger is consummated.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly
authorized officers as of the day and year first above written.
CONVERGYS CORPORATION |
||||
By: | /s/ Xxxxx X. Xxxxxxxxx | |||
Name: | Xxxxx X. Xxxxxxxxx | |||
Title: | President and Chief Executive Officer | |||
DIALOG MERGER SUB, INC. |
||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | President | |||
INTERVOICE, INC. |
||||
By: | /s/ Xxxxxx X. Xxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxx | |||
Title: | Chief Executive Officer |
ANNEX A
CONDITIONS TO THE OFFER
Notwithstanding any other provision of the Offer, Purchaser shall not be required to accept
for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c)
promulgated under the Exchange Act, pay, and (subject to any such rules or regulations) may, to the
extent expressly permitted by this Agreement, delay the acceptance for payment for, or the payment
for, any Shares validly tendered and not properly withdrawn, and, to the extent permitted by the
Agreement, may amend or terminate the Offer if, at the expiration of the Offer, as extended or
amended: (i) any applicable waiting period under the HSR Act shall not have expired or been
terminated prior to the expiration of the Offer; (ii) any approval or consent of any Governmental
Authority which is necessary for the Transactions to be consummated in accordance with the terms of
the Agreement, or any relevant statutory, regulatory or other governmental waiting periods, whether
domestic, foreign or supranational, the failure of which to be obtained or to be in full force and
effect, and any waiting period the failure of which to have expired, would, upon the purchase of
the Shares pursuant to the Offer, have, individually or in the aggregate, a Material Adverse Effect
on the Company, shall not have been obtained or be in full force and effect or shall not have
expired; (iii) there shall not have been validly tendered and not withdrawn prior to the expiration
of the Offer a number of Shares which, together with any other Shares beneficially owned by Parent
or its wholly owned subsidiaries, constitute more than two-thirds of all the Fully Diluted Shares
of the Company (the “Minimum Condition”); or (iv) any of the following conditions shall occur and
be continuing:
(a) (i) any of the representations and warranties of the Company set forth in Sections
5.03(b)(1) (other than de minimis variations), 5.03(m), or 5.03(w) of this Agreement shall not be
true and correct in all respects, in each case at and as of the date of this Agreement and at and
as of the Acceptance Date as though made at and as of the Acceptance Date (except to the extent
expressly made as of an earlier date, in which case as of such date), or (ii) any of the other
representations and warranties of the Company set forth in this Agreement shall not be true and
correct in each case at and as of the date of this Agreement and at and as of the Acceptance Date
as though made at and as of the Acceptance Date (except to the extent expressly made as of an
earlier date, in which case as of such date), in each instance, in the case of this clause (ii)
only, except as would not reasonably be expected to have a Material Adverse Effect with respect to
the Company.
(b) (i) the Company shall have failed to perform or comply in any respect with Section 6.10(f)
of this Agreement, or (ii) the Company shall have failed to perform or comply in any material
respect with any other of its agreements, obligations or covenants under this Agreement, and such
failure to perform or comply with such other agreements, obligations or covenants shall not have
been cured to the good faith satisfaction of Purchaser;
(c) this Agreement shall have been terminated in accordance with its terms;
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(d) there shall have occurred any event, change, effect or occurrence which has had or would
reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect
with respect to the Company;
(e) Purchaser and the Company shall have agreed that Purchaser shall terminate the Offer or
postpone the acceptance for payment of Shares thereunder; or
(f) a Governmental Authority shall have enacted, issued, promulgated, enforced or entered any
law, rule, regulation, injunction, order, decree or ruling (whether temporary, preliminary or
permanent) which is then in effect and has the effect of making the acquisition of Shares by Parent
or Purchaser or any affiliate of either of them illegal or otherwise restricting, preventing or
prohibiting consummation of the Transactions.
The foregoing conditions, other than the Minimum Condition, may be waived by Purchaser in whole or
in part at any time and from time to time in its sole discretion. The failure by Purchaser at any
time to exercise any of the foregoing rights shall not be deemed a waiver of any such right; the
waiver of any such right with respect to particular facts and other circumstances shall not be
deemed a waiver with respect to any other facts and circumstances; and each such right shall be
deemed an ongoing right that may be asserted at any time and from time to time.
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